author: • KING, X

text:
    GULF, C. & S. F. RY. CO. et al. v. CHAPPEL et al.
    (No. 318.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 4, 1918.
    Rehearing Denied March 20, 1918.)
    Negligence @=⅛9 — Turntables—Warning Children.
    Where child was injured playing on a turntable, the action of a towerman, near by, in speaking generally to the children on the turntable, telling them they might get hurt, did not relieve the railroad company from liability, where he could have gone down from his tower and removed the children with no injury to the operation of the railroad, except that a passenger train would have been delayed until he had returned to his post and permitted it to pass.
    Appeal from District Court, Milam County; X C. Scott, Judge.
    Action by Frank Chappel against the Gulf, Colorado & Santa Fé Railway Company and others and action by Clara Chappel against the same defendants were consolidated. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    Rehearing denied 202 S. W. 366.
    T. J. & C. T. Duff, of Beaumont, and Terry, Cavin & Mills, of Galveston, for appellants. A. X Lewis and- W. A. Morrison, both of Cameron, for appellees.
   • KING, X

On the 4th day of April, 1916, Frank Chappel filed a suit in the district court of Milam county against the Gulf, Colorado & Santa Fé Railway Company, and, San Antonio & Aransas Pass Railway Company, for damages to him on account of the value of the services of his minor child being diminished by reason of injuries sustained by her, and for the reasonable value of services by physicians and surgeons in charge of said child; and on the same day he, as next friend of his minor child, filed a suit against the same defendants for damages resulting to the minor child for the same alleged injuries. By agreement of counsel, the two cases were consolidated and tried by the judge without a jury as one case. The cause of action of each plaintiff is. based upon the same state of facts, in so far as negligence is concerned. The appellee, Clara Chappel, then a girl about 8 years of age, was, on the 25th day of December, 1915, seriously injured while playing upon a turntable owned jointly by appellants, and operated in the town of Cameron, a city of some 5,000 inhabitants, for the. purpose of turning their locomotives, and while playing upon the ponderous machine, she fell, and was caught beneath the same, and suffered very painful and permanent injuries. The allegations in the petition as to negligence on the part of appellants in maintaining said turntable, without it being closed or locked, and as to the tender years and indiscretion of the appellee, Olara Chappel, and as to the alluring nature of the turntable to children of tender years to play thereon, and as to the invitation to them on account thereof, are substantially as set out in plaintiff’s petition in the case of Railway Co. v. Morgan, 92 Tex. 100, 46 S. W. 28, with the additional allegations set out in plaintiff’s petition in Said Company v. Morgan, 24 Tex. Civ. App. 58, 58 S. W. 544, and we therefore deem it unnecessary to more than refer to these petitions. A trial before the court, without a jury, resulted in a verdict in,favor of ap-pellee, Clara Chappel, in the sum of $4,000, and in favor of her father in the sum of $1,000, which includes $560 for doctor bills and medical attention, and $440 for the diminished value of the services of said Clara Chappel to him during her minority. From this judgment, by agreement, this joint appeal has been perfected.

The trial court, in his findings of fact, found that the turntable weighed approximately 10 tons, and that when it was revolved, it was a dangerous instrument to leave unfastened and exposed to the visits of children of immature judgment and discretion; that the appellee, Clara Chappel, was about 8 years of age, and was about, or possibly a little more than, the average of intelligence of children of her age, but that she was incapable of realizing or comprehending or appreciating the danger to her of playing upon said turntable; that for at least 15 years the children of the town and vicinity had been in the habit of playing on said turntable, and that at least on two former occasions each of two boys had sustained injuries in playing on said turntable, and that the servants and employds of said defendants knew that it was the custom of children to play thereon; that appellee, Clara Chappel, had on one occasion prior to the injury, but without the knowledge of her parents, played upon said turntable, and that the frequency and the long time during which children had been permitted to play on the same justified the belief that the defendants invited children there to play; that on the 25th day of December, 1915, the appellee, Clara Chappel, and several small children went to play on said turntable, and while they were playing on the same, and revolving it as a hobby horse, or merry-go-round, one of the employés of appellants, who was in charge of and operating the tower near the turntable, actually saw the children, and that said employe' actually saw said children playing thereon, and saw they were in danger, and that he made no effort,’ further than to speak to them in an effort to remove them therefrom, and that said employé actually saw them, and actually saw the danger to which they subjected themselves in playing thereon; that from the manner in which said turntable was constructed, in a public place, and the manner in which and the length of time children ' were allowed to play thereon, appellants impliedly invited them on the same to play, and that appellee was so ■ invited at the time she received the injury of which complaint is made in the petition; that on account of the character of the turntable, and because it was so attractive to children of immature judgment, and had been so long used and used so much by them, with the knowledge of employes of said appellants, that they were guilty of negligence in failing to keep same safely locked or guarded or fenced, or protected in some way, so that appellee would not be enticed thereon to play; that on account of the age and immature judgment of appellee, she did not know it was dangerous to play on the turntable, and that she was not guilty 6f contributory negligence; .that the father did not know, before said child was injured, that she had ever played thereon, and that he was not guilty of contributory negligence; that the appellee will never recover from said injuries, and that from horrible laceration, enormous scars were left on her body by reason of such injuries, so that she will incur mental suffering as well as physical pain in the future, and that $4,000 was a reasonable compensation for the damages and injuries received; that from the long and continued use of said turntable by the children of the town as a place of play and amusement, and the publicity of same, and the fact that the defendants, through their servants, actually knew of such use of the same before the accident in question, amounted, in fact, to an implied invitation on the part of said appellants to children generally and plaintiff in particular to use said turntable as a place of play, and amusement, and imposed the duty upon each of the appellants to exercise ordinary care to safely lock or guard the same, or to inclose it in such manner that young and inexperienced children, like the appellee, could not have gained access to such ponderous, attractive, and dangerous machine, to gratify their childish propensities for amusement, and that the appellants were alike guilty of culpable negligence in failing so to do, and that such negligence was the direct, and proximate cause of the injuries to appellee.

In his conclusions of law, the court found, from the foregoing facts, that the appellants were jointly liable to the appellee for the injury received, because such injuries were the direct and proximate result of negligence of said appellants, as pointed out in the findings of fact.

Similar findings of fact were made as to the cause made by the father as to the negligence of appellants, with the further findings as to doctor bills and the value of the diminished services of the appellee, Clara Chappel, to him by reason of the injuries.

Neither by any assignment of error in this court, nor by anything in the motion for new trial in the trial court, did either of appellants assail the petition as not stating a cause of action, nor have they assailed any findings of fact hy the trial court, nor is the judgment complained of as being excessive. We, therefore, have a case where the petition states a cause of action, where the case is tried before the trial court, without a jury, where the findings of fact by the trial court show that the plaintiff was not guilty of contributory negligence, and that each of the appellants was guilty of culpable negligence, and that this negligence was the proximate cause of the injury.

Appellants’ assignments of error Nos. 1, 2, 3, and 5, in effect, attach the turntable doctrine. It would be threshing over old straw to repeat here this doctrine, which seems to be well established, and to have had its origin in 1871, when the Supreme Court of the United States, in Railway Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, announced the doctrine that it was a question of fact for a jury to determine whether or not the railway company would be liable for damages upon the implied invitation of the company to children to use the turntable as a place of amusement. It appears that the turntable question first came before the Supreme Court of Texas about 10 years after the decision in the Stout Case, and Judge Stayten, in Evansich v. Railway Co., 57 Tex. 126, held that:

“The fact that the turntable was upon the premises of the' appellant does not affect the question, nor relieve it from the duty of exercising in reference thereto such care as will render it not a dangerous machine to children who are attracted to it for amusement.”

The turntable doctrine, in 1894, was again exhaustively reviewed and discussed by the Supreme Court of the United States in Railway Company v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434, and the doctrine in the Stout Case was unanimously reaffirmed by that great court, and so far as we have been able to find, there has been no departure therefrom. Furthermore, from our investigation, the courts of Texas have always adhered and still adhere to the rule as announced in the Stout Case. H. & T. C. Ry. Co. v. Simpson, 60 Tex. 103; Railway Co. v. McWhirter, 77 Tex. 360, 14 S. W. 26, 19 Am. St. Rep. 755; Railway Co. v. Robertson (Sup.) 16 S. W. 1093; Railway Co. v. Morgan, 24 Tex. Civ. App. 58, 58 S. W. 544. See, also, Railway Co. v. Styron, 66 Tex. 421, 1 S. W. 161; Railway Co.v. Harlan, 39 Tex. Civ. App. 427, 87 S. W. 732; Railway Co. v. Voss, 159 S. W. 64.

Furthermore, the doctrine laid down in the Stout Case has been followed by the highest courts in a great majority of the other states of the union. There are rare exceptions in other states sought to be main-‘íained upon the less humane doctrine of the common law, established at a time when human progress had not yet developed those ponderous, dangerous, and attractive machines by which so much injury and death has been inflicted upon the children of the land, and is not of the character that is very persuasive or convincing when weighed by the side of enlightened views of the great courts in the cases where the doctrine is enforced.

The fourth assignment of error is as follows:

“The evidence in this case shows that just prior to the accident, the child was warned to go away from the turntable. This appealing, the defendants were under no. obligation or duty to do more in the premises to avert injury to the child. The employes were not obligated, as a matter of law or fact, to neglect the duties for which they were employed, and retard the business of defendants, or use force or quasi force to prevent this child from injuring herself merely because she was in a position on the private property of the defendants, uninvited, from which injury could result.”

This assignment assumes that the child was on the turntable uninvited, while the trial court found that she was there by the implied invitation of appellants. It is true that the court found, in his findings of fact, that the man in the tower, operating the switch devices at the junction of appellants’ roads, a few minutes before the injury saw appellee riding the turntable in question, in company with other children, and spoke to them in an effort to remove them therefrom. The evidence discloses that the towerman did not have charge of the turntable. Appellants, on the one hand, contend that notice to him that children often played upon said turntable was not notice to the officers and employes of appellants, in the sense that they would be held to knowledge of the use to which children frequently put the turntable; on the other hand, they claim he had the authority to withdraw the invitation to the children, and did withdraw the invitation, by speaking to them in an effort to get them to get off the turntable. His action did not relieve the railroad companies in the premises. Appellants undertake to bring this case under the rule announced in North Texas Construction Co. v. Bostic, 98 Tex. 239, 83 S. W. 12. In that case plaintiff was a boy 8 years of age, was injured in a ginhouse, and it was admitted that he was warned by one of defendant’s employes, but the evidence as to the character of the warning was conflicting. It was held that a request to charge the jury that if plaintiff had been ejected from the ginhouse shortly before he was injured, and warned that the ginhouse was dangerous, and that he could not remain there, and thereafter, without defendant’s consent, or so suddenly that defendant’s employés did not have time to prevent it, plaintiff re-entered the ginhouse and got his hand in the saws by getting too near them, he could not recover, should have been given.

It is admitted and found by the. court as a fact that the witness, John Chandler, in charge of the towerhouse and within a few feet of the turntable, actually saw and realized the perilous position of appellant, and that he made no effort to prevent the injury to appellant, except to speak to the children generally, telling them that they might get hurt, and accepting appellants’ theory that he had authority to warn and eject the children from their perilous position, his action, according to our conception of law and morals, falls far short of his duty to them. He attempts to excuse himself for not going down and removing the children by the fact that there was an approaching passenger train just over the hill, and that it could not pass the crossing until he gave the signal. Therefore, from his own statements, had he gone down from his tower and removed the children, no injury or inconvenience to the operation of the passenger train would have been occasioned, except that it would have stood still until he removed the children and returned to the tower and permitted it to pass. As said by Judge Hodges, in Little v. James McCord Co., 151 S. W. 837:

“Human life and personal safety are the most important objects of governmental protection, and the policy of imposing civil liability upon those whose carelessness or indifference may cause the loss of either is one of the most effective means of inspiring a proper degree of diligence to avoid injuries or fatal accidents resulting from exposure to dangerous agencies and hazardous situations.”

The sixth and last assignment of error asserts:

“The fact, if it was a fact, that other children had played on the turntable, and that other persons in the service of the railway company had seen children playing on the turntable, did not and could not establish liability here, especially in the absence of evidence that any officer or employe of the defendant company having charge of said turntable or with authority to act relative thereto were shpwn to have been cognizant of such use of the turntable by uninvited persons.”

The court’s findings of fact dispose of this assignment against appellants. It appearing that there is no merit in this appeal, and that justice has been done, the cause is affirmed.
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source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. v. HAPGOOD et ux.
    (No. 8752.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 12, 1918.
    Rehearing Denied March 2, 1918.)
    1. Witnesses <&wkey;269(10) — Cross-Examination — Value oe Land.
    Where plaintiff, testifying as to the value of his grass lands before the grass was burned, fixed the value at a sum considerably higher than the amount at which he rendered the land for taxes, defendant is, on cross-examination, entitled to bring that matter out.
    2. Appeal and Error &wkey;>1048(C) — Review-Harmless Error.
    In an action against a railroad company for burning grass lands, where plaintiff testified that the difference between the value of the land before and after the fire was $3 per acre, and the jury found the difference to he $2.50, while many other witnesses testified to a greater damage by reason of the fire than did plaintiff, the erroneous refusal of the court to allow defendant to bring out on cross-examination of plaintiff that he had rendered for taxation the lands of which the grass lands were a part at a sum considerably less than the value which he ascribed to those lands was harmless, for the value per acre of the entire land might not be a fair criterion of the value of the grass lands; this being particularly true, as under plaintiff’s petition he was restricted to the recovery of $1 damages per acre.
    3. Damages &wkey;>112 — Injuries to Land — Measure op Damages.
    Where the grass on plaintiff’s land was fired by a railroad company, plaintiff is entitled to recover as damages the highest market value for any purpose to which he might wish to subject the land or the grass, including the purpose of pasturage.
    4. Appeal and Error &wkey;>1051(l) — Review— Harmless Error.
    In an action for damages for the burning of grass, where a witness on both his original and cross examination testified positively that he knew the reasonable cash market value of the land for pasturage purposes before it was burned over and was familiar with lands in that vicinity, the admission of his testimony on value was not reversible error, though on cross-examination the witness stated he was expressing his individual opinion as to value.
    5. Appeal and Error <®=o237(2) — Reception op Evidence — Motion to Strike.
    Where the bulk of a witness’ opinion evidence as to value was received before cross-examination showed that it was inadmissible, a party, desiring the exclusion of such testimony, must move therefor or he cannot complain.
    6. Damages <&wkey;174 — Value—Evidence.
    In an action for damages for the burning of grass, testimony as to the value of the grass destroyed, based on the value of other grass lands, is inadmissible, where it did not appear that the lands taken as a criterion of value were essentially similar to that burned over.
    Appeal from District Court, Clay County; W. N. Bonner, Judge.
    ■ Action by K. N. Hapgood and wife against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Thompson, Barwise & Wharton, of Ft. Worth, and Taylor, Allen & Taylor, of Henrietta, for appellant. Wantland & Parrish, of Henrietta, for appellees.
   BUCK, J.

This is the second appeal of this case, the opinion on the first appeal being found in 184 S. W. 1075, to which reference is made for the statement of facts and of the pleadings.

Under the first and second assignments it is urged that the court erred in sustaining plaintiff’s objection to the question propounded by defendant’s counsel to plaintiff while on the stand, if.he rendered for taxation for the year 1914 the land burned over. It is claimed that the witness had already testified on direct examination that the grass on the 623½ acres was burned during June and July, 1914; that the value of said land immediately before tbe grass thereon was burned was of the reasonable market value of $15, and that the value immediately after the burning, was $12; that if he had been required to answer, plaintiff witness would have testified that he swore to the rendition for taxes for the year 1914 of the 7,369 acres in pasture, of which, the burned area was a part, and that it was rendered for the value of $41,065.11. Appellant insists that such evidence was admissible, not as a proof of value, but as affecting the credibility of the witness and his sincerity in stating that the land was of the value of $15 and as an admission against interest. In Lumber Co. v. City of Houston, 45 Tex. Civ. App. 363, 101 S. W. 822, writ denied, it was held that, in an action for damages to property, the rendition for taxes, unsworn to, made by the manager of plaintiff corporation, was admissible as an admission by the owner. To the same effect is Boyer & Lucas v. Railway, 97 Tex. 107, 76 S. W. 441; Railway v. Koch, 144 S. W. 1035. In answer to these two assignments, and also to the third, which complains of the refusal to admit in evidence the rendition itself, appellees cite us to Railway Co. v. Goswick, 83 S. W. 424, Railway Co. v. Kell, 16 S. W. 936, San Antonio v. Diaz, 62 S. W. 550, and McLane v. Paschal, 74 Tex. 20, 11 S. W. 837. In the last-cited and parent case, it was not shown that appellee, whq testified as to the value of certain property in controversy, made the rendition sought to be introduced, but for all that appears such rendition was made by her deceased husband. Therefore that character of evidence was not admissible for the purposes for which it is offered here. In the Diaz Case, supra, the Court of Appeals for the Fourth District, disposed of the question briefly in these words:

. “The seventh assignment complains of the action of the court in excluding plaintiff’s assessments of his property for taxation upon the issue of value. This was not error. McLane v. Paschal, 74 Tex. 26, 11 S. W. 837.”

We concur with the holding in this case if the assessment was offered merely to prove value, and we think the Supreme Court, case cited by Judge James as authority for the holding in the Diaz Case, goes no further. In Railway Co. v. Kell, supra, the Court of Appeals said:

“Evidence showing at what valuation appel-lees had rendered their land for taxation was immaterial, and was properly excluded from the consideration of the jury. [Gulf, C. & S. F. Ry. Co. v. Abney] 3 [Willsons] Civ. Cas. Ct. App. § 414. But even if there was error in excluding such evidence, it was harmless, for it is not claimed by appellant in its brief that the judgment is excessive.”

So in the last-cited case it was not shown that such evidence was introduced as an admission against interest, etc. In Railway Co. v. Goswick, supra, the court cites only three of the cases heretofore mentioned as authority for the holding of inadmissibility, and even there it is shown that the evidence offered was for the purpose of proving value, not for the purpose for which the evidence was offered in the instant case. We are therefore of the opinion that on cross-examination of plaintiff it was admissible for the defendant to show, if it could, that plaintiff had sworn to a rendition for taxes for the year 1914 of the same land as involv • ed in this suit, and at a valuation slightly over one-third of what he had testified on direct examination the value' was. The testimony on the question of value was sharpt ly contradictory, and took a wide range, and in cross-examination of plaintiff, under the circumstances shown, we think the defendant should have been permitted to elicftt from the witness the information sought.

But appellees urge that, even if it should be held that error was committed, such error is harmless, and did not reason, ably contribute to an appreciable enhancement of the damages found; that the difference in the value of the land before and after the fire as testified to by plaintiff was only $3 per acre. The jury found the difference to be $2.50, and, the plaintiffs having alleged the injury to the land amounted only to $1 per acre, judgment as to this item, was limited to the amount alleged. Taking into consideration the fact that it is a matter of general knowledge, even in spite of our so-called “Full Rendition Law,” that property is not ordinarily rendered by its owners for its full cash value, and in consideration of the fact that this is not a suit involving the question of the taking or conversion of the land, where the entire value thereof has been lost to the owner, but is a case calling for damages arising from alleged depreciation in value, we have concluded that the error did not probably contribute to an enlargement of plaintiff’s recovery. Moreover, there were many other witnesses who testified to a greater damage by reason of the fire than did plaintiff.

We do not think error is shown in the admission of the testimony of the witnesses Brightwell, Weldon, and Melton and plaintiff as to the value of the land before and after the fire for the purposes for which plaintiff was using it. We think each of these witnesses qualified to testify as to such value, and that plaintiff was entitled to recover the highest market value for any lawful purpose to which he might wish to subject the land or the grass, including the purpose of pasturage. St. L. S. W. Ry. Co. v. Anderson, 173 S. W. 908, writ denied; City of Ft. Worth v. Burton, 193 S. W. 228; Railway Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; Railway Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; Harle v. Railway Co., 39 Tex. Civ. App. 43, 86 S. W. 1048.

Nor do we think reversible error is shown in the admission of the testimony of the witness Hamm as to the market value of the land in question. While it is true that .on cross-examination he testified that he was basing his expressed opinion as to such value on what he would do individually, and noton what other parties would do about purchasing the land before and after the fire, yet on original examination, as well as on redirect, he testified positively that he knew the reasonable cash market value of said land for pasturage purposes before the grass was destroyed and after the land had been burned over. He further testified that he had been engaged in the cattle business in Olay county for some 30 years, and had bought and sold lands considerably during said time, and had leased much grass land, and knew the effect on the land and turf from burning off the grass, and that in estimating the value of the land before and after the fire he would take into consideration the result of his long experience and observation in the cattle business and in the use of, and in the buying, selling, and leasing of, lands for pasturage purposes. Railway Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365. Moreover, a major portion of this testimony had been given on direct examination, before any objection was raised, and the proper practice, if defendant desired the testimony excluded, would have been to make a motion to that effect. Railway Co. v. Hogsett, supra; Dunn v. Taylor, 107 S. W. 952; Collins v. Cook, 40 Tex. 238; Telephone Co. v. Thomas, 45 Tex. Civ. App. 20, 99 S. W. 879.

The sixth assignment is directed to the exclusion of certain tendered testimony by defendant’s witness A. W. Melton, to the effect that he was leasing) a tract of land near plaintiff’s ranch, and was therefor paying an annual rental of 65 cents per acre, and that he knew of other parties who were renting grass land from 45 cents to 75 cents per acre, and that such rental was the reasonable market value of said grass for the year 1914, and that the land so rented was similar and of like character to plaintiff’s land. This witness testified as to his knowledge of the grass on plaintiff’s land during the period covered by the fire as follows:

“No, sir; I do not remember being in Mr. Hapgood’s pasture in June or July, 1914, or of inspecting grass in bis pasture in June or July, 1914, before these fires; cannot tell the jury now the condition of the grass in his pasture at the time, because I was not in it, and I will not undertake to tell the jury the kind of grass that Mr. Hapgood had at that time. No, sir; I cannot say positively now that I saw the grass that Mr. Hapgood had destroyed, because I do not think that I was in his pasture that year, and do not know the grass that Hapgood had destroyed or the nature of that particular grass, and when I' said I knew the value in a general way, I just supposed that that grass out there of Hapgood’s was practically of the same nature of other grass there that X knew of, and that I have seen. I do not know what kind of grass Mr. Hapgood had in the triangular pasture in 1914; positively X do not, only in a general way.”

While it has been held that in order to establish the market value of land or personal property it is admissible, under certain restrictions, to show what other lands or property of a similar kind and under circumstapces and conditions similar to those existing at the time of the loss or injury to the property in question were sold for, yet in order to make such testimony admissible, it must be shown that the property in question was essentially similar in every material particular with that sold, and that the time and conditions of such sales were similar to those existing with reference to the injured or destroyed, property in controversy. Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S. W. 68; 16 Cyc. p. 1138 et seq.

We overrule appellant’s sixth assignment, and also the seventh, eight, and ninth, which complain of the exclusion of similar testimony by other witnesses, who either .did not show themselves to be acquainted with the character of grass on plaintiff’s land during 1914, or did not show that the same conditions existed with reference to plaintiff’s land as existed with reference to other lands concerning the rental value of which their evidence was sought. Moreover, these witnesses testified as to their opinion of the market value of the grass in Hapgood’s pasture, which was burned, basing such value at from 45 cents to 75 cents per acre. Even if the evidence objected to under the tenth assignment was improperly admitted, we are of the opinion that no reversible error is shown.

The eleventh assignment, urging that the court should have given a peremptory instruction, because, as insisted, the plaintiff, K. N. Hapgood, was guilty of contributory negligence ás a matter of law, is overruled. We are of the opinion that the question of Hapgood’s contributory negligence was for the jury,' as per our opinion on the former appeal. We overrule the twelfth assignment, because if any prejudicial error is shown in the submission of special issue No. 3, it was cured by the remitter filed by plaintiff. We overrule the thirteenth assignment for reasons given as to the eleventh.

We think the seventeenth assignment is too vague and uncertain to warrant consideration, and find no prejudicial error in the other assignments. All assignments are overruled, and the judgment is affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

O'n Rehearing.

Appellant by written motion and oral argument urges that we erred in the disposition of a number of its assignments. In deference to counsel’s earnest insistence and because Chief Justice CONNER was absent at the time this case was submitted on original hearing, and at the time of the rendition of a judgment of this court, and because the other members of the court were desirous that the questions presented in tMs case should be passed upon by the entire court, at the submission of the motion for rehearing counsel for appellant was granted an extension of time, so that he might present in detail his contentions that the court erred in the former disposition of the appeal. 'Since then the full court has given the case a careful reconsideration, taking up each assignment, noting the evidence, and examining the authorities relied on, and it is our opinion that the conclusions reached by the court on original hearing are sound, and that the judgment should not be disturbed. We might add, with reference to the first and second assignments of error, that there is nothing in the record to show that the 623½ acres burned was not more valuable than other portions of the 7,369 acres in pasture. This is noted as a further reason for our conclusion that no reversible error is shown in the action of the court in sustaining the objection of appellees to the testimony of K. N. Hapgood, to the effect that he had rendered the 7,369 acres, for the year 1914, at a stated value of $41,065.11. In fact, there is some proof in the record that the grass on this 623½ area was even better than that on other portions of the larger tract.

The motion for rehearing is overruled.
      (gjsjPor otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. LIUZZA.
    (No. 354.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 7, 1918.)
    Railroads <&wkey;417 — Injuries to Animals— Proximate Cause.
    Where plaintiff’s cattle while in a city were run down by defendant’s train, which was proceeding in excess of the speed allowed by ordinance, and there was testimony that had the train not been proceeding so fast the cattle could have been driven from the tracks and the accident avoided, recovery cannot be denied on the theory that the railroad company’s violation of the municipal ordinance was not the proximate cause.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Action by V. Liuzza against the Galveston, Harrisburg & San Antonio Railway Company, begun in justice court and appealed by defendant to county court. Prom a judgment there in favor of plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, for appellant. Meek & Kahn,, of Houston, for appellee.
   BROOKE, J.

This is an action instituted by the plaintiff, V. Liuzza, in the justice court, against the Galveston, Harrisburg & San Antonio Railway Company for damages in the sum of $165 on account of the alleged negligent killing of two cows on the 17th day of September. Plaintiff reserved the right to plead further orally, and supplemented the written memorandum of his petition by further oral pleading to the effect that the negligence of the defendant consisted in running its train at an excessive and unlawful rate of speed, and in violation of the city ordinance prohibiting the running of a train beyond six miles an hour, and that if defendant had not exceeded said speed limit, they could have stopped the train in sufficient time to have avoided the accident if they had kept a proper lookout. The defendant, be>sides pleading a general demurrer to the written pleadings as well as to the oral pleading, denied all the allegations of the plaintiff, and further pleaded orally that the plaintiff was guilty of contributory negligence, and that said cattle were running at large at the time of the killing, and that said killing occurred at the place where defendant was not allowed to fence its right of way. On a trial in the justice court on the 11th day of March, 1915, plaintiff recovered a judgment for the sum of $100. The cause was appealed to the county court at law, and on trial before the court and jury on the 2d day of February, 1917, a verdict was found in favor of plaintiff for the sum of $165, and judgment entered accordingly. The case is properly before this court.

The first assignment of error insists that the court erred in refusing to give defendant’s requested special charge, directing the jury to return a verdict in its favor on the ground that the evidence was insufficient to authorize a verdict and judgment for the plaintiff. The proposition under this assignment is-that, in order for the plaintiff to recover damages for animals killed on a railroad track, it is incumbent upon him, not only to prove the specific negligence alleged in his petition, but also that such negligence was the proximate cause of his loss. The plaintiff having predicated his right to recovery on the alleged excessive and unlawful speed of defendant’s railway train in running same at a rate in excess of the city ordinance in the city of Houston, and having failed to establish any causal connection between the excessive speed, if any, of the defendant’s railway train and the killing of his cows, the court should have instructed a verdict in favor of the defendant for the reason that the plaintiff has failed to establish that the alleged negligence relied on by him was the proximate cause of his damages. As a counter proposition, it is insisted that the court did not err in refusing to give said special requested instruction, because the evidence was amply sufficient to require the court to submit the cause to-the jury.

It seems that the plaintiff was in the dairy business in the city of Houston about four blocks from the place where the two' animals sued for were killed, and the killing occurred under the following circumstances: On the night of September IT* 1913, the witness had been absent from home, and. when he came home noticed that the fence was broken where the cattle were penned, and, after seeing that the fence was broken and that the cattle had gotten out, he went to look for the cattle about 11 o’clock at. night. He found them and began to drive them home. Just as he was driving them home a passenger train of the defendant company was approaching, and, to use the language of James Liuzza, the said passenger train was going at a high rate of speed, and hit two head of said cattle, and, according to his testimony, the train was going about 25 miles an hour when it struck the cattle; that the cattle were killed right on the crossing. He testified that he was ■driving from the bayou side toward home; that he could not head them off because the train was going too fast; that if the train had been going slow, say about 6 miles an hour, he could have done something, that is, he could have run the two head of cattle off the right of way and saved them from being hit, but from the way the train was going there was not any chance for him to do anything. On cross-examination he testified:

“I heard the train whistle when they were blowing for the tower; the train generally blows about four or five blocks from the tower. It must have been in the neighborhood of a couple of blocks. The tower is about a couple of blocks from the crossing. If the train was going slow I could no doubt got ahead of them and headed them back on the safe side. The train was going, I won’t say 50' or 75, it was going very fast. I was right off the track when the train came by. I didn’t quite get on the track, and if it was coming slow ho could have stopped it and avoided it. The train was going to the city depot. The two that were killed were Jersey cows. They were at the head of the group. I would say I was about half a block _ behind them. The cattle were killed in the city limits of the city of Houston.”

Upon redirect examination he testified:

“After I heard the whistle blow, if the train had been traveling at six miles an hour I would have had time to save the cattle from being struck.”

This testimony shows that the witness saw the train strike the two head of cattle, and, .according to his statement, if the train had been going at the rate of six miles an hour he could have driven the cattle off the track in time to have averted the accident.

We believe this case is distinguishable from many of the other -cases along this line, in that the proof in this case • shows that, but for the excessive rate of speed of the train that killed the animals in question, this accident would have been averted. The party was driving the cattle home after they had broken out of the pen. The proof is undisputed that but for the speed of the train the party being present with the cattle could have gotten them off the right of way. This was not disputed in any way. The party was aware of the approach of the train, and if the ordinance had been observed in this case, and if the train had proceeded at the rate of six miles an hour, the testimony is that the party being with the cattle could have gotten the cattle off the track, and averted the injury. Therefore, in our judgment, it seems that this is a case in which the violation of the city ordinance was the proximate cause of the injury. The assignment is therefore overruled.

Complaint is made by the second assignment that the verdict should be set aside as contrary to the law and great weight and preponderance of the evidence, in that there is no testimony to sustain the damage sustained.

The testimony is 'that the cattle killed were Jersey cattle, and that the value fixed by the jury is a reasonable one. The assignment is overruled, and the judgment affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: HALL, J.

text:
    BONNETT-BROWN SALES SERVICE CO. v. DENISON MORNING GAZETTE.
    (No. 1302.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1917.
    On the Merits, March 13, 1918.)
    1. Appeal and Error t&wkey;643(4) — Record on Appeal — Time to Preserve.
    Under court rule 11 (142 S. W. xi), requiring motions for certiorari to perfect the record to be made as required by rule 8 (142 S. W. xi), which requires motion relating to' informalities to be filed within 30 days after filing the transcript, where a transcript was filed in July, a motion for certiorari to perfect the record made on November 17th was too late.
    2. Appeal and Error &wkey;>660(l) — Record on Appeal — Time to Preserve.
    Under rule 57 (142 S. W. xvi), as to bringing up original papers, an order of the trial court is prerequisite to incorporation- of such papers in the record on appeal.
    3. Sales <&wkey;355(l) — On the Merits — Breach —Actions—Evidence—Admissibility.
    In an action for alleged balance due under contract, under defense of rescission, where plaintiff failed to allege estoppel to rescind by accepting the articles sold under the contract, evidence of such acceptance was irrelevant and immaterial.
    4. Appeal and Error <&wkey; 1057(2) — Harmless Error.
    In action for alleged balance due on contract, exclusion of statement of witness that defendant broke the contract, if error, was harmless, where such fact was admitted in the pleadings and established by other witnesses.
    5. Principal and Agent <S^103(12) — Unauthorized Acts op Agent — Evidence—Admissibility.
    Where plaintiff’s agent .took defendant’s order on blank which provided that salesmen were not authorized to alter the sales offer by verbal agreement, and wrote on the back of the carbon copy left with defendant that, if defendant became financially unable to complete the contract, he might, on notice, rescind, such clause was admissible in evidence in plaintiff’s action for the alleged balance due, since the contracts were duplicate originals.

      6. Sales &wkey;>!)l — Rescission—Notice.
    Defendant was justified in sending his notice of rescission to the address stated on his duplicate of the contract.
    7. Evidence <&wkey;179(2) — Copy oe Letter — Notice to Produce Original.
    When plaintiff failed to produce the original letter of rescission after due notice, a carbon copy thereof was admissible.
    8. Trial <&wkey;203(l) — Instructions.
    While the court is not required ordinarily to state the issues made by the pleadings in the preliminary part of the charge, if he attempts to do so, the issue should be correctly stated.
    9. Trial <@=>239 — Instructions.
    In action for balance alleged to be due under contract, where defendant made unconditional tender of a smaller sum, instructions precluding recovery of anything except the amount sued for was error.
    10. Trial <&wkey;251(5) — Instructions — Conformity with Pleadings.
    In action for balance alleged to be due under contract, instruction that, if defendants defaulted in payment before cancellaion of the contract, to find for plaintiff was error, in the absence of a pleading to support it.
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Action by the Bonnett-Brown Sales Service Company against the Denison Morning Gazette. Judgment for defendant, and plaintiff appeals. Reversed .and remanded. There was a preliminary motion for certio-rari to bring up certain original papers.
    Motion overruled.
    Brame & Brame, of Sherman, for appellant. P. O. French, of Denison, and G. C. Harney, of Sherman, for appellee.
   HALL, J.

The appellee moves this court to order the original contract and a certain postal card described in the motion filed in this court, and supports the motion by the affidavit of the trial judge that both of said papers were introduced in evidence, and the motion is further supported by the affidavit of the county clerk that the original contract was a part of the evidence introduced upon the trial. This motion is resisted by appellant. Rule 8 (142 S. W. xi) for Courts of Civil Appeals provides that all motions relating to informalities and the manner of bringing a case into this court shall be filed here within 30 days after the filing of the transcript, and that such objection shall be considered waived if not filed within 30 days. The transcript and statement of facts were filed in the Court of Civil Appeals at Dallas in July. This motion was filed in this court November 17th. Rule 11 (142 S. W. xi) for the Courts of Civil Appeals provides that motions for cer-tiorari to perfect the record shall be made within the time required by rule 8 (142 S. W. xi), and if made afterwards they will be entertained only upon such terms as the Courts of Appeals may deem just and proper. No reason is shown why the motion was not filed within the time, and in our opinion it should not be considered.

However, we doubt the authority of this court to grant the motion and order original papers sent from the county court. Rule 57 (142 S. W. xvi) for the Courts of Appeals provides that original papers sent up with the transcript by order of the trial court for the inspection of the appellate court will be retained in the office, and will not be allowed to go out of the custody of the clerk, except by order of the justices of the court. As said by Gaines, Justice, in Cunningham v. State, 74 Tex. 511, 12 S. W. 217:

“When it is desired that original papers used upon the trial in the court below shall accompany the transcript, we deem the proper practice to be to obtain an order of the trial court to that effect. * * * To permit the counsel in a case to agree to send up original documents as those ruled upon in the bill of exceptions, without his approval or order, would be to allow them to bring to this court, by agreement, a question not passed upon by the court below. It is against the policy of the law and the spirit of our statutes and rules to permit this.”

The record contains no order of the trial judge that the original papers be sent to this court, and until that has been done we doubt our authority to issue a writ of certiorari to the lower court.

The motion is overruled.

On the Merits.

Appellant instituted this suit in the county court of Grayson county, against W. H. Taylor, J. E. Wall, and W. H. Whitley, a firm doing business in the city of Denison under the name of Denison Morning Gazette. The basis of the suit is a contract entered into between the parties, providing for the purchase of property described in the contract as follows:

“M. W. N. & Fur. O. L. & Coup. Sales Service in Matrix form, to be shipped at our expense on the following terms and to consist of: 4 sheets, Mens and Womens each, monthly, semimonthly, two sheets each newspaper and furniture sent monthly. Stock books, mens and wo-mens, complete to date. 50 coupons, 6 special coupons.”

Although we have searched the record and statement of facts diligently we -are unable to give any idea as to what the subject-matter of this contract is, but we presume the parties know, and that the contract does not relate to any matters illegal or against public policy. We don’t understand why the defendants did not attack it for uncertainty and ambiguity. Appellant sought to recover an alleged balance of $399, alleged to he due under the contract, for the things mentioned above, whatever they may be, furnished to appellees, and for which no payment had been made. The defendants answered by general demurrer and specially that they were not indebted to the plaintiff in any sum except $19, which they tendered into court. They admitted execution of the contract, but alleged that there was a clause written by one Hurd, the agent or salesman of the plaintiff, on the back of the carbon copy of the contract kept by defendants, as follows:

“In ease of not being able financially to meet conditions of this contract same will be canceled upon notification of the fact to Bonnett-Brown Sales Service, 223 W. Jackson Blvd., Chicago.”

They allege that they became financially unable to comply with the contract, and so wrote plaintiff to said address. By supplemental petition plaintiff denied that said in-dorsement was made by its authorized agent or by any one having authority to enter the term above quoted upon the contract; that the said Hurd had no authority to make contracts or to enter into any stipulations or conditions, but was authorized only to solicit and send in orders which were of no effect until accepted by Bonnett-Brown Sales Service, and when this was done and written notice of such acceptance was mailed to the party offering to purchase, it became the contract of the parties, and was not subject to cancellation; that Hurd was not the agent of plaintiff, authorized to write the stipulation on the reverse side of the copy of the contract, as contended by defendants, and had no authority so to do; that if defendants desired to impose such condition, they should have had the same indorsed on the original contract which was sent to and accepted by plaintiff so as not to deceive or mislead plaintiff or enable any one else to do so, and defendants are estopped from claiming that such indorsement became any part of the contract; that the order or offer to purchase received and accepted by plaintiff had no such agreement as that set up by defendants in their said answer, and plaintiff had no notice of such indorsement until after this suit was brought; that salesmen were not authorized to change such order or offer by verbal agreement. There was a verdict and judgment for defendants.

Plaintiff offered the deposition of Arthur Bonnett to prove that the defendants accepted the semimonthly shipments on the contract long after they claimed they notified plaintiff to cancel the agreement. This was objected to because it was irrelevant and immaterial, and we think the objection was properly sustained. Plaintiffs did not plead that deféndants were estopped by accepting under the contract, and the evidence was clearly irrelevant.

That part of the answer of the witness Bonnett to the twelfth interrogatory, as follows:

“They broke their contract by not having allowed us to fulfill our end of same, and by not having remitted each installment as due promptly”

—was excluded upon the same objection. While it may not have been immaterial and irrelevant, and was not, we think, a conclusion of the witness, but was rather the statement of a fact, the error, if any, is harmless, because the facts testified to were admitted in the pleadings and established by other witnesses.

Appellant contends under the third assignment that the court erred in admitting that portion of the contract referred to above, written upon the back of it by Hurd, its agent. The contract contains this provision, “Salesmen are not authorized to alter this sales offer by verbal agreement.” Of course this provision in no way affects the written statement referred to. It appears from the statement of facts that 1-Iurd filled out the order or contract in duplicate by the use of carbon, retaining one copy and leaving the other with the appellees. They are therefore duplicate originals, except as to the in-dorsement made by him upon the one left with appellees. It was not shown that ap-pellees knew that the copy retained by Hurd and sent in to appellants did not contain the same indorsement. The indorsement is a material part of the contract, and but for it the evidence is the appellees would not have executed it. They are not chargeable with the failure of Hurd to notify his principal of such stipulation, and if appellants have any right to complain, it is of Hurd in not making the indorsement upon both copies, or his failure to inform them that such stipulation was a part of the duplicate original left with appellees. The authority of Hurd to accept an offer of that kind and forward it to his principal cannot be questioned. By express terms of the offer itself it did not become the contract of the parties until accepted by appellant. The authority of Hurd to receive written offers is admitted by appellant’s president, Arthur Bonnett.

Appellees offered a carbon copy of a letter written by them to appellant. and addressed to 223 West Jackson Blvd., Chicago, the address given them by appellant’s agent, 1-Iurd. If this was not appellant’s correct address, it was not shown that appellees knew that fact, and they were justified in sending their letter, notifying appellants that they were not financially able to further comply 'with the contract to such address. After due notice to produce the original given to appellant, and upon their failure to do so, appel-lees were entitled to have the carbon admitted in evidence.

The agency of Hurd having been fully established by the evidence of Bonnett, the admission of the testimony of J. E. Wall upon that point is harmless error.

While the court is not required ordinarily to state the issues made by the pleadings' in the preliminary part of the charge, if he attempts to do so the issue should be-correctly stated. This the court failed to' do, and in this particular case we think the failure to fully and correctly state the issues has been prejudicial to appellant. The-matter, having been called to the attention of the court by proper objections, and the objections having been overruled, will require a reversal of the judgment.

The exceptions to the first paragraph of the court’s charge was because it restricted plaintiff’s recovery to $399, and did not allow the jury to find for the plaintiff any other amount. Appellees made an unconditional tender of $19, which they paid into the registry of the court, and practically admitted their indebtedness in that sum; in fact, by a fair construction of the contract the court must have concluded that they were due that amount, and yet under the first paragraph of the charge the jury were precluded from returning a verdict for even that amount. The court did not err in overruling appellant’s exceptions to the secbnd paragraph of the charge, nor in refusing to give special charges Nos. 1, 2, 3, and 4, requested by appellants.

The fifth special charge was upon the issue of estoppel, and instructed the jury that if they found the defendants made default in the payment of installments, or that said payments became delinquent before defendants notified plaintiff of their intention and desire to cancel said contract, then to find for plaintiff. There was no pleading under which this charge could have been properly given.

The eighth special charge, under which the jury might have returned a verdict for plaintiff for a less sum than $399, should have been given; and the failure to do so was prejudicial error.

The remaining assignments are overruled.

For the errors indicated, the judgment must be reversed, and the cause remanded.
      <&wkey;For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£rx^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    BASS v. JOSEPH.
    (No. 5965.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1918.
    Rehearing Denied March 27, 1918.)
    1. Mortgages <&wkey;86(3) — Validity—Insanity —Evidence.
    Evidence held to support a finding that a mortgagor was of unsound mind when he executed the mortgage, although the witness did not see him on the day he executed the mortgage.
    2. Insane Persons <&wkey;75 — Lending Money to — Recovery.
    Mortgagee lending money to a person of unsound mind is not entitled to recover all of it, where only a part of it was expended for necessaries.
    3. Insane Persons <&wkey;99 — Actions — Findings.
    Where mortgagee sues to recover all of the money lent to a person of unsound mind, and does not at any time ask for such part as was expended for necessaries, and he makes no objection to an issue asked the jury as to whether the deceased expended the money for necessaries to which the jury answered “No,” he cannot maintain that the answer of the jury and a judgment thereon were contrary to the law and evidence, although it was undisputed that some of the money had been expended for necessaries and for the benefit of the insane person’s estate.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by Julia H. Bass against Lee Joseph, administrator of the estate of Antonio P. Steguin and Emilia Seguin, deceased. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Wm. C. Church and Claud J. Carter, both of San Antonio, for appellant. T. G. Jackson, of San Antonio, for appellee.
   MOURSUND, J.

This suit was instituted by appellant, Julia H. Bass, against appellee, Lee Joseph, administrator of the estate of Antonio P. Seguin and Emilia Seguin, deceased, upon a promissory note executed by Antonio P. Seguin, deceased, for $450, and for the foreclosure of two deed of trust liens upon certain real estate in Sau Antonio and 100 acres of land in the counties of Wilson and Bexar, alleged to have been executed by Antonio P. Seguin individually and as survivor of the community estate of himself and of his deceased wife. Defendant pleaded in effect that Antonio P. Seguin was of unsound mind at the time he executed the instruments sued on, and that such fact was known to plaintiff and her agents or could have been ascertained by inquiry. In reply plaintiff denied that Seguin was of unsound mind, and alleged that the sum of money evidenced by the instruments sued on was turned over and delivered to Seguin and was used for the benefit of his individual estate and the community estate of himself and his deceased wife, and that the money advanced on said note was expended for necessaries and for the protection and benefit of the estates of Seguin and wife.

The court submitted the case to the jury on two special issues: (1) Was Antonio P. Seguin of sound mind at the time he executed the instrument sued on? (2) Did he disburse or spend the money procured on the execution of the note and deeds of trust for necessaries or for the protection and benefit of his estate? The jury answered both questions in the negative, and upon such verdict judgment was entered in favor of the defendant.

By the first assignment complaint is made of the refusal to give appellant’s requested peremptory instruction; two contentions being urged: First, that the evidence failed to show Seguin was of unsound mind at the time he executed the instruments; and, second, that it was undisputed that the money or a part thereof was disbursed for necessaries or for tbe protection and benefit of the estates of Seguin and wife. In support of the first contention, it is shown that the witnesses who testified to the unsoundness of Seguin’s mind admitted they did not see him on March 25 and April 22, 1916, the dates the instruments were executed, and that the witnesses for plaintiff who saw him on those days testified either that he was of sound mind or that there was nothing in his conduct or speech to indicate insanity.

Dr. Springer, the only medical witness who testified, stated that Seguin was insane when he saw him in January, 1916; also about a month afterwards; also that he saw him seven or eight times about March, 1916; that he was insane each time he saw him, and insane when he died on May —, 1916; that his condition was worse each time he saw him; that he was suffering from alcoholic insanity, and that when a man uses alcohol to such an extent that he is insane he is never the same man again; that he has weakness of memory and will, loss of pre-ception and judgment, and has hallucinations and delusions; that when a man is in that condition witness did not think he could get back into a sound condition again. Certain answers of this witness are relied on by appellant as concessions that he could not speak with regard to Seguin’s condition on the two dates mentioned because he did not see him on such dates. His testimony on the whole shows that his opinion was that Se-guin was continously of unsound mind up to the time of his death to such extent as to render him unfit to contract.

There is also the testimony of his relatives as to his unsoundness of mind on each occasion when they saw him; of his persistent and unremitting indulgence in intoxicants up to the time of his death; and of the sale of considerable property by him, and the disposition or loss of a considerable amount of the proceeds without any benefit to his estate. His relatives sought to prevent him from obtaining money because convinced that he was incapable of taking care thereof, and had warned those conducting the matter of making the loan for plaintiff of his mental condition before they parted with any money to him.

In view of the cause of the insanity from which Seguin suffered at the times when Dr. Springer saw him, and of the testimony as to the permanency of the condition thus brought about, aecompanied with proof of Seguin’s continued indulgence to excess in alcohol, the testimony, we believe, warrants a finding that at the times he executed the instruments sued on Seguin was afflicted with- such unsoundness of mind as rendered him incapable of contracting.

It is evident that if only a part of the money delivered to him was used by him for necessaries or to protect or benefit his estate the court would not have been justified in giving a peremptory instruction to find for plaintiff, which would mean that plaintiff should recover the entire debt sued for. Therefore the second contention shows on its face that it is without merit, and the facts ai e ample to show that plaintiff was not entitled to a peremptory instruction on the second theory.

The second assignment complains of the submission to the jury of the issue whether Seguin was of unsound mind, and is disposed of adversely to appellant by what has been stated above.

The third assignment reads as follows:

“Because the verdict of the jury and the judgment of the court based thereon are contrary to the law and evidence in this, that the court charged the jury as follows, to wit: ‘Did Antonio P. Seguin, now deceased, disburse or spend the money procured on the execution of the notes and mortgage in evidence before you for necessaries or for the protection and benefit of his estate? Answer this question “Tes” or “No.” ’ To which the jury answered ‘No,’ and the undisputed evidence introduced in this cause shows conclusively that all of the money procured on the execution of the note and mortgages in evidence was disbursed or spent by the deceased, Antonio P. Seguin, for necessaries or for the protection and benefit of his estate or at least a certain portion thereof, for all of which the plaintiff is entitled to recover of the defendant.”

The proposition submitted under the assignment is the same as the second proposition under the first assignment, namely, that, it being undisputed that the money or part thereof was disbursed for necessaries or for the protection and benefit of the estates of Seguin and his wife, it was the duty of the court to instruct a verdict in appellant’s favor. The proposition is not applicable to this assignment, and is without merit, as has already been pointed out. The assignment may be considered as a proposition ,to the effect that, if all or part of the money was expended for necessaries or the protection and benefit of Seguin’s estate, the finding of the jury is without evidence to sustain it, and therefore such finding and the judgment based thereon should be set aside. The issue was framed in accordance with appellant’s pleading, wherein it was alleged that the money paid out by her on the note was thus spent, meaning, of course, all the money. She did not by pleading raise the issue whether part of the money was thus spent, nor ask the court to submit such issue, nor object to the form of the question asked. Unless the jury found that all of the money was spent for necessaries, etc., it was bound to return a negative answer to the issue. The evidence amply sustains the finding, for appellant failed to show that all the money was spent for such purposes. Therefore the answer was correct and cannot be set aside, nor can the judgment be set aside on the ground that such answer is not supported by evidence.

If the assignment can be construed as containing any other propositions, it will be multifarious, and not entitled to be considered. We do not understand, however, that it is intended to be urged that, regardless of the verdict, the court should have allowed a recovery for such portion of the money as the undisputed evidence might show to have been expended for necessaries, but that if any part of the money was thus expended the verdict must be set aside. If it was desired to raise the issue that certain items should have been adjudged to have been expended for necessaries, it should have been done by an appropriate assignment.

The assignments of error are all without merit, and the judgment must be affirmed.
      GzzzFor otter cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    FT. WORTH & D. C. RY. CO. v. MILLER.
    (No. 8786.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 16, 1918.
    Motion for Rehearing Withdrawn March 23, 1918.)
    1. Appeal and Error <§=>215(1) — Presumption.
    Failure to object to an instruction raises the presumption that the party so failing approved it.
    2. Master and Servant <§=>204(2) — Federal Employees’ Liability Act — Assumption oe Risk.
    Under the federal Employers’ Liability Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. 1916, 8657-S665), when the negligence for' which damages are sought does not amount to a violation of the terms of the federal statutes enacted for the safety of the employés, known as the Safety Appliance Acts, the defense of assumed risks at common law is left intact, so that such defense may be set up in action for injuries on railroad turntable, as against allegations that the handle was too short, there was insufficient light, the electric turner was out of order, and the current was left on therein when plaintiff was ordered to turn the table by hand.
    3. Master and Servant <§=>217(1) — Federal Employers’ Liability Act — Assumption of Risk.
    It is a well-settled rule of the common law that a servant assumes, not only the risks ordinarily incident to performance of duties of his employment, but also those arising from the negligence of the master, if he knows or in the proper discharge of the duties of his employment necessarily must have known of such negligence and of the dangers incident thereto in performing such service.
    4. Master and Servant <§=>217(20) — Federal Employees’ Liability Act — Assumption of Risk.
    A roundhouse helper who had worked for over two years about engines and a turntable, which was always lighted the same way, the lever handle of which had always been the same length, and the electrical turner had for months been in the same condition, all of which he knew, assumed the risk of injury from such conditions.
    5. Master and Servant <§=>286(32) — Federal Employers’ Liability Act — Assumption of Risk.
    Where injured servant’s petition charged negligence in ordering him to operate turntable by hand while the electric current was turned on in the machine turner, without the servant’s knowledge, there was an issue of negligence for the jury, since the servant did not assume such risk.
    6. Master and Servant <§=>217(1) — Federal Employers’ Liability Act — Assumption of Risk..
    To subject servant to defense of assumed risk, it is not necessary that he understand operation of a complicated machine, but only that he know the dangerous condition thereof, or should know it, in the exercise of reasonable care.
    7. Trial <§==>253(9) — Injuries to Servant-Instructions.
    Where injured servant’s testimony disclosed that he was legally chargeable with knowledge of some of the dangerous conditions, it was error to charge that he could recover if the master was negligent.
    8. Trial <§=>252(11) — Injuries to Servant-Instructions — Warning Servant.
    Where injured servant’s testimony disclosed that he was legally chargeable with knowledge of some of the dangerous conditions, requested instruction that he did not assume the risk if he acted under orders without time to appreciate the danger was improper.
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by J. M. Miller against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson, Barwise & Wharton and A. J. Baskin, all of Ft. Worth, for appellant. Simpson & Estes, of Ft. Worth, for appellee.
   DUNKLIN, J.

The Ft. Worth & Denver City Railway Company has appealed from a judgment against it in favor of J. M. Miller for damages as a result of personal injuries sustained by him while employed in the roundhouse of the railway company in the city of Ft. Worth.

Located in the roundhouse was a turntable about 70 feet in diameter, which was used to turn the engines after they had been run from a track outside to a track constructed upon the turntable. The table was equipped with an electrical appliance for the purpose of turning it by electricity. An attachment known as the “rheostat” was located on the turntable, and was a device by means of which the current of electricity necessary to turn the table was turned off or on. Attached to the table was a lever which extended several feet beyond the outer circumference of the table, which was designed and used for the purpose of turning the table whenever the electric appliance was not in working order. This lever extended 6 or 7 feet over the edge of the platform which surrounds the turntable, and inclines upward from the turntable; being a height of about 18 inches abovfe the platform nearest to the other circumference of the table and about 3 feet above the platform at the farther end.

Plaintiff was employed by the company to perform services in and about the roundhouse, including the work of putting out and building fires in the engines, and assisting in placing engines on the turntable and turning them around. On the occasion in controversy, an engine of great weight was placed on the turntable by Mr. Kelly, the foreman, and plaintiff who was working under him. After so placing it, Mr. Finley and Mr. Johnson, two other employés', attempted to turn the table by using the electric appliance provided for that purpose, but were unable to do so. When the foreman and plaintiff made that discovery, the foreman suggested that there was no sand in the box and that the absence of sand was the cause of the failure of the table to turn. Thereupon he directed plaintiff to get a bucket of sand and put it in the box, which plaintiff did. But as the table still failed to turn, the foreman ordered the plaintiff to assist in turning it by pushing on the lever. The foreman, Einley, Johnson, and plaintiff all took hold of the lever and began pushing it; plaintiff having hold of the lever at the point nearest to the outer circumference of the turntable. Soon after plaintiff began pushing upon the lever the table began to turn in consequence of the working of the electric appliance. At that time, plaintiff was in a stooping position with his breast against the lever and his legs so extended that his feet were within about one foot of the pilot of the engine, which extended over the platform surrounding the turntable. According to plaintiff’s version, when the table thus began to turn as a result of the application of electric power, the lever upon which he was pushing suddenly pulled away from him and caused one of his feet to so slip or stumble as to be caught under and dragged by the pilot of the engine until it came in contact with one of the rails of a track leading to the turntable, and thereby his leg was bruised and crushed. Recovery for damages for that injury was' the purpose of this suit.

The trial was before a jury, who returned a verdict in response to a general charge submitted to them by the court. While there were numerous issues of negligence tendered in plaintiff’s petition, the following were the only ones submitted in the court’s charge: First, that the place at which defendant was working at the time of his injury was insufficiently lighted; second, that the electric appliance and apparatus installed for the purpose of turning the table was not in proper working condition; third, that the electricity had been turned on at the time plaintiff undertook to assist in turning the table by means of the lever with no one in charge of the rheostat to cut it off, all without the knowledge of the plaintiff; fourth, that the lever provided by defendant by which to turn the table was too short to be used for that purpose.

Among other defenses, the railway company pleaded specially that at the time of plaintiff’s injury he was engaged in the service of handling interstate commerce, and that, if he was injured through the negligence of the defendant as alleged in his petition, he assumed the risk of such injury therefrom, under and by virtue of the federal Employers’ Liability Act, because, prior to and at the time he undertook to perform the services he was performing at the time of his injury, he knew of such negligence and of the risk and dangers' incident to the performance of such service under the circumstances, or in the necessary and proper discharge of his duties should have acquired such knowledge, and therefore was chargeable with such knowledge. And the defense of assumed risk was specially pleaded to each of the allegations of negligence mentioned above. Defendant also pleaded in the alternative that, if plaintiff did not know of the alleged negligent conditions causing his injury, he was nevertheless guilty of negligence proximately contributing to his injury in failing to acquire such knowledge, and that such negligence on his part would diminish his recovery in any event, under the same federal act.

The court instructed the jury that at the time of plaintiff’s injury he and the defendant were engaged in the service of interstate commerce, and the evidence was sufficient to sustain a finding to that effect. Furthermore, plaintiff urged no objection to that •instruction, and by his failure so to do he, at all events, is presumed to have approved it. G. T. & W. Ry. v. Dickey (Sup.) 187 S. W. 184.

Under the federal Employers’ Liability Act, when the negligence for which damages are sought does not amount to a violation of the terms of the federal statutes enacted for the safety of employés, known as the Safety Appliance Acts, the defense of assumed risks at common law is left intact; and in the present suit the alleged negligence does not involve a violation of any of those acts. S. A. L. Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. So. Ry. Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970; Freeman v. Powell, 144 S. W. 1033.

It is a well-settled rule of the common law that. a servant assumes, not only the risks ordinarily incident to performance of duties of his employment, but also those arising from the negligence of the master, if he knows, or in the proper discharge of the duties of his employment necessarily must have known, of such negligence and of the dangers incident thereto in performing such service. St. L. S. W. Ry. Co. v. Hynson, 101 Tex. 543, 109 S. W. 929; Quill v. H. & T. C. Ry. Co., 93 Tex. 616, 55 S. W. 1126, 57 S. W. 948; Patton v. Dallas Gas Co. (Sup.) 192 S. W. 1060.

Plaintiff had been performing the same service for more than two years prior to the accident; and, without undertaking to set out the evidence, we think it sufficient to say it was conclusively shown by his own testimony that for several months prior to the accident there was the same absence of lights at the place where he was employed as existed on the night of the accident, that the length of the lever used to. turn the turntable was the same during all of that time, and that the condition of the electrical appliance during the same period of time was in the same condition as it was on the night of the accident, all of which conditions and the risks incident thereto in the i>erformance of the duties of his employment were known to the plaintiff at the time, or necessarily must have been known ■to him in the proper discharge of his duties, when he undertook to assist in turning the table by pushing on the lever. Under such circumstances, he must be held to have assumed the risks of injury from those conditions, and the trial court erred in submitting any of those issues to the jury as a basis for a verdict in plaintiff’s favor; and for that error the judgment must be reversed. And in this connection it may be added that there was no evidence to show that the alleged failure to have the premises properly lighted in any manner contributed to cause the injury.

But plaintiff testified that he did not know that the electricity had been turned on in the appliance provided for the turning of the table, at the time he undertook to assist in pushing the lever, although he admitted that he knew no one was in charge of the rheostat for the purpose of cutting off the current of electricity. The allegations of negligence in plaintiff’s petition with respect to those matters were that the defendant was guilty of negligence in instructing him to assist in pushing the lever with the electric power turned on the machine without his knowledge, and was also guilty of negligence in not having some one in control of the appliance to stop the machine. In the court’s charge those two issues were combined and submitted as one single issue. As he himself testified he knew no one was in charge of the machine, the risk of the injury from the negligence, if any, of the master in so failing to have some one in control of the rheostat for the purpose of cutting off the electric current was assumed. We are of the opinion, however, that the same cannot be said of the alleged negligence in directing plaintiff to push on the lever while the electricity was on, if he was ignorant of the fact that the electricity had been turned on at the time, as he testified was true. And, in view of that conclusion, we overrule appellant’s contention as advanced in different assignments of error that there was no issue of negligence, which should have been submitted to the jury.

Appellee has cited such authorities as Marshall v. St. L. S. W. Ry., 107 S. W. 883, Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S. W. 869, and Howard Oil Co. v. Farmer, 56 Tex. 301, which announce the general rule that, in the absence of any knowledge on the part of the servant of danger to him in the performance of a particular service, which he is directed to perform by the master, he has the fight to assume that the work is not dangerous, and under such circumstances he does not assume the risk of such dangers. But those authorities have no application to any of the issues of negligence discussed above, save and except the one issue of alleged negligence in directing plaintiff to assist in turning the table by using the lever while the electricity was on.

Appellee insists that, as the electric appliance consisted of complicated machinery, the mechanism of which was not understood by the plaintiff, he should not be held to an assumption of the risks of danger incident to its alleged defective condition or operation. That contention is without merit, since it was not necessary for him to understand the mechanism of the machinery in order to be subject to the defense of assumed risks, if he knew from the operation of the machine that it was in a defective and dangerous condition, or in the proper discharge of his duties must necessarily have acquired such knowledge.

As it was shown by plaintiff’s own testimony that he was legally chargeable with knowledge of some of the alleged defective conditions and of the dangers of injury incident thereto, there was error in the instruction given in the general charge to the effect that he would be entitled to a recovery if defendant was guilty of negligence in failing to warn him of any and all dangers to which he was exposed; and also in plaintiff’s requested instruction to the effect that he did not assume the risk of his injury, if on the occasion of his undertaking to assist in pushing the lever, in obedience to the order of the foreman so to do, he did not have time sufficient to enable him to appreciate the danger of injury to himself in so doing. Furthermore, plaintiff’s pleadings, properly construed, did not tender the issue of negligence in failing to warn him of the? danger to which he was exposed.

For the reasons indicated, the judgment is reversed, and the cause is remanded.

CONNER., C. J., not sitting.
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text:
    LYNCH et al. v. BERNHARDT et al.
    (No. 8781.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 26, 1918.)
    .1. Continuance <§=^37, 46(10) — Peopeb Denial.
    Where defendants’ application for continuance was not in writing, the failure to put it in writing and to verify it was .not waived by plaintiffs, and it was not shown that the testimony of either of defendants, whose absence was the basis of the application, was necessary for a proper presentation of the defense, the trial court was within its judicial discretion in overruling the motion.
    2. Appeal and Ebbob @==5736 — Assignment oe Ebbob— Complaint oe Sepaeate Rulings — Multieabiousness.
    An assignment of error wherein complaint is made of two separate and independent rulings of the court is bad for multifariousness.
    3. Appeal and Ebbob @=374 (2) — Guardian and Wabd — Duty to Give Bond on Appeal — Peesonal Inteeest — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2106, relieving executors, administrators, and guardians from the duty of giving bonds on appeal or writ of error when taken by them in their fiduciary capacity, does not apply where the guardian or administrator is personally aggrieved by the judgment, and desires to appeal in his own right, in which case he must give bond within the time required by law to perfect his appeal.
    4. Guaedian and Wabd @=182(1) — Sureties on Bond oe Guaedian — Liability to Wabd.
    A guardian’s bond having been given in the sum of $3,000 in favor of six beneficiaries, and the guardian having made full and satisfactory settlement with two of the wards, the bond inured to the benefit of the four remaining wards, one of whom was properly allowed to recover less than one-fourth of the amount of the bond against the bondsmen.
    5. Appeal and Ebbob @=373(1) — Perfection op Appeal — Piling oe Bond — Statutes.
    Appeal from a judgment in the lower court, where the law requires a bond to be given, is not perfected until the bond is filed, under Vernon’s Sayles’ Ann. Civ. St. 1916, art. 2099, providing when appeal or writ of error is perfected, and article 2101 as to supersedeas bond.
    6. Appeal and Ebbob @=373(1) — Necessity eob Appeal Bond — Action Against Guardian’s Bondsmen.
    In an action against the sureties on a guardian’s bond, an appeal bond was necessary to perfect appeal by the sureties.
    Appeal from Bosque County Court; W. A. York, Judge.
    Action by Annis E. Bernhardt and. husband against Mary A. Lynch and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Geo. P. Robertson, of Meridian, for appellants. Word & Word, of Meridian, for ap-pellees.
   BUCK, J.

We do not think any error is shown in the action of the court in overruling the application of defendants below for a continuance. Said application was not in writing, nor was the failure to put their application in writing and to verify the same waived by plaintiffs. Further, it was not shown that the testimony of either of the defendants whose absence was the basis of the motion for continuance, was necessary for a proper presentation of the defendant’s defense. We think the trial court' was well within his judicial discretion in overruling said motion. Moreover, we are of the opinion that appellant’s first assignment is bad for multifariousness, in that under it complaint is made of two separate and independent rulings of the court. See articles 1917 and 1918, Vernon’s Sayles’ Tex. Civ. Stats.; Gipson et al. v. Williams et al., 27 S. W. 824. Hence we overrule appellant’s first assignment.

In plaintiff’s first amended petition and in th'e first paragraph thereof, after naming all the defendants, including T. F. Lynch,, the husband of Mary A. Lynch, it is stated that “all of them have appeared by counsel and filed their answer.” Appellant’s second assignment, directed to the alleged failure of plaintiff to make the husband of Mrs. Lynch a party, appears to be without support in the pleading.

Article 2106, Vernon’s Sayles’ Tex. Civ. Stats., relieving executors, administrators, and guardians from the duty of giving bonds on appeal or writ of error when taken by them in their fiduciary capacity, does not apply where the guardian or administrator is personally aggrieved by the judgment of a court below, and desires to appeal in his own right. In such case he must give bond within the time required by law, in order to perfect his appeal. Guest v. Guest, 48 Tex. 210; Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 92 S. W. 255. Hence we conclude that appellant’s contention as set forth in their third assignment, to the effect that the judgment theretofore rendered by the district court of Bosque county was suspended by appeal at the time of this trial in the county court, must be overruled.

Nor do we think there is any merit in the fourth assignment to the effect that the guardian’s bond having been given in the sum of $3,000, in favor of six beneficiaries, that Mrs. Bernhardt could not recover an amount in excess of $500. While it was held in the cases cited by appellants under this assignment that sureties on a bond may not be held in an amount in excess of that recited in the bond, yet no such question is presented here. It appears from the judgment introduced in the evidence that the guardianship was closed, prior to this suit in so far as two of the wards were concerned, to wit, Fannie A. Howell (formerly Cot-terell) and Willie A. Cotterell, and that the guardian had already made full and satisfactory settlement with: them. There is nothing in the record to suggest that the bondsmen had responded to any suit or claim urged by either of these two wards. Hence it follows that the bond inured to the benefit of the four remaining wards, including Mrs. Bernhardt. The recovery here allowed is' only for $747.40, less than one-fourth of the amount of the bond. The cases holding that where there are several wards, and the guardian has given a general bond for the protection of all, a recovery as to each ward against the bondsmen is limited to his pro rata share of the amount fixed in the bond (such cases as Knox v. Kearns, 73 Iowa, 286, 34 N. W. 861; Edmonds v. Edmonds, 73 Iowa, 427, 35 N. W. 505, and other eases cited in 21 Cyc. 261), are but announcements of a rule predicated on. the right of the sureties to have their liability limited to the amount of the bond, and the right of the wards to share equally under this protection. But, as shown, this rule of decisions has not been violated by the judgment rendered in the instant case. Hence we overrule the fourth assignment, as well as the first, second, and third. Assignments 5 to 8, inclusive, as limited by the two propositions thereunder, the four being grouped, fail to represent error.

An appeal from a judgment in the lower court, where the law requires a bond to be given, is not perfected until the bond is filed. Articles 2099 and 2101, Vernon’s Sayles’ Tex. Civ. Stats. A bond was necessary in this character of appeal. Logan v. Gay, supra.

All assignments are overruled, and the judgment affirmed.

Attained.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
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