text:
    SCHAEF v. RIHA.
    (No. 5866.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 16, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Appeal and Error <&wkey; 1032(1) — Burden of Establishing Error on Appeal.
    An appellant must point out reversible errors in order to secure reversal.
    2. Evidence <&wkey;114 — Materiality — Accident Policies.
    In a personal injury action by a railroad employé, the company, having shown that plaintiff had several accident policies at the time of his injury, cannot complain that it was not permitted to show that the employé had carried the insurance for a number of years and presented many claims for injuries; the matters being immaterial.
    3. Trial <&wkey;133 (6) — Argument of Counsel.
    It was shown that a railroad employé was carrying several accident policies at the time of the injury. His counsel in his opening argument, in discussing such evidence, adverted to the fact that he was a poor man and had a wife and children to support. On objection counsel stated that he was arguing the testimony introduced, and, when informed by the court that no such testimony had been allowed to go to the jury, requested the jury to disregard the statement, and the court verbally instructed them to disregard it. Held, that as the argument was simply in explanation of the reason why the employé was.carrying such accident insurance, and not made in an attempt by counsel to bring before the jury matters not in evidence, it does not warrant a reversal, not being prejudicial.
    Appeal from District Court, Williamson County; Ireland Graves, Judge.
    Action by Frank Riha against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilcox, Graves & Metcalfe, of Georgetown, for appellant. J. W. Barker, of Houston, for appellee.
   KEY, C. J.

Appellee concedes the correctness of appellant’s statement of the nature and result of this case, which is as follows:

“The appellee in this court, Frank Riha, sued the appellant, C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, in his official capacity, for certain injuries to his foot, alleging that on October 19, 1915, the said Frank Riha was in the employ of said receiver in the capacity of a car inspector and repairer in the Missouri, Kansas & Texas yards at Granger, Tex., in Williamson county, and that while discharging such duties as such inspector and repairer it became necessary for said Riha to go into, under, and between the cars of one of said trains; that before so doing he obtained a promise from the conductor of said train that he would protect this appellee while so engaged in said work; that while so ■engaged in working on said train between the cars thereof, the servants, agents, and employés of this receiver negligently, carelessly, and without any warning being given to said appellee, moved said train suddenly, so that the said Riha was thereby knocked down,_ and his left foot run over by said train, cutting, wounding, and bruising such foot, and necessitating the amputation of some of the toes thereon, the said Riha suing for the sum of $15,000 as damages.
“The defendant receiver answered with a general denial, and also that the said Riha was carrving a large sum of accident insurance in several such companies, and that if he was injured such injury was caused by the said Riha purposely and intentionally placing his foot on the rail and allowing the train to run over same for the purpose of obtaining damages therefrom; further pleading that the federal laws and statutes governed in this action, and also that if the plaintiff was injured as alleged by him that same was caused by the failure to comply with certain rules laid down by the defendant company as to giving notice to the employés in charge of said train or placing out flags, notifying such employés that he was in or under said train, and also that plaintiff’s own negligence contributed to such injury in that he failed to so notify such employés, and also pleading the doctrine of assumed risk in that the plaintiff knew that such cars and train were apt to be moved at any time, and that he went into and under said train so knowing, without notifying any one of his presence in said train, nor taking any precautions for his safety.
“Upon a trial of this cause on November 14, 1916, the jury found a verdict in favor of the plaintiff for the sum of $1,500, and the court entered its judgment accordingly.
“Thereafterwards on December 1, 1916, the defendant’s first amended motion for a new trial was overruled, to which action of the court the defendant duly then and there excepted and gave notice of appeal to this honorable court, and was by the trial court granted 90 days from and after its adjournment in which to make up and prepare a statement of facts and bills of exception in said cause, which was done within the prescribed time. Appellant taking his assignments of error from tils amended motion for a new trial.”

Opinion.

The questions presented to this court for decision are neither new nor novel, and, while they have all received proper consideration, it is not deemed necessary to refer to them in detail, or to elaborately discuss them.

The burden rested upon appellant to point out reversible error, and, in our opinion, he has failed to do so. No complaint is made against the very satisfactory charge of the learned trial judge; and appellant’s requested charge, the refusal of which is assigned as error, was properly refused because it was upon the weight of testimony,, was incomplete, and might have misled the jury and caused them to believe that a finding of contributory negligence on the part of appellee would have operated as a complete defense, whereas such contributory negligence could have been considered only in diminution of the amount of recovery.

The trial court permitted appellant to show that at the time he was injured ap-pellee had several accident insurance policies, and no error was committed in not permitting appellant to show that for a number of years past he had carried such insurance, and had presented many claims for injuries. The matters referred to were immaterial in this case.

The improper statement made by the plaintiffs attorney in bis opening argument to the jury in discussing the evidence, showing that the plaintiff was carrying several accident insurance policies, to the effect that the plaintiff was a poor man, and had a wife and children to support, does not require a reversal of the case. As soon as that statement was objected to, the plaintiffs attorney stated to the court that he was arguing testimony which had been introduced, to the effect that the plaintiff did have a wife and children, ana, when the court informed him that no such testimony had been allowed to go to the jury, the plaintiffs attorney then asked the jury to disregard the statement, and the court verbally instructed them to the same effect. No written instrument was requested upon that subject. The statement was not made in connection with an inflammatory argument against the railroad, nor in an appeal for sympathy for the plaintiff, but as offering an explanation for why the plaintiff was carrying so much accident insurance; and that argument was not calculated to inflame or prejudice the jury against appellant. The explanation of the attorney who made the statement, to the effect that he was arguing the testimony which had been introduced, shows that he was not undertaking to testify himself as a witness, and, when the court held that no such testimony had been allowed to go to the jury, the course then pursued by both the offending attorney and the court renders it improbable that the statement complained of resulted in harm to appellant.

This case is distinguishable from M., K. & T. v. Thomas, 63 Tex. Civ. App. 312, 132 S. W. 974, where the plaintiffs attorney asked him if he had a wife and children, and he gave an affirmative answer before the defendant’s attorney could object thereto. In that case the course pursued resulted in placing before the. jury sworn testimony to the effect that the plaintiff had a wife and children. The course pursued in the case at bar did not have that effect, and, in view of that fact and what was done to correct and nullify the improper statement, we hold that the case should not be reversed upon that ground. Hogan v. Railway Co., 88 Tex. 679, 32 S. W. 1035.

The verdict of the jury involves findings of fact to the effect that the defendant was guilty of the negligence and wrongful conduct charged in the plaintiff’s petition and submitted by the court’s charge, that the plaintiff did not assume the risk which resulted in his injury and was not guilty of contributory negligence, and that the amount awarded him by the verdict was fair compensation for the injury sustained. There was testimony before the jury which supports the findings referred to, and they are here adopted as this court’s findings of fact.

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

Affirmed.
      <gzs?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. JEFFERSON.
    (No. 5876.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 4, 1918.
    Rehearing Denied Feb. 27, 1918.)
    1. Appeal and Ebbob <&wkey;771 — Bbiefs—Late Filing — Excuse.
    Appellant’s failure to file brief in time prescribed by Rev. St. 1911, art. 2115, is not excused by custom among the attorneys of the place to waive the requirements of the statute and the effect, under Rule 39 (142 S. W. xiii) of noncompliance therewith.
    2. Appeal and Ebbob <&wkey;773(2) — Bbiefs — Bate Filing-Dismissal.
    Where filing of appellant’s brief, instead of being in the time prescribed by Rev. St. 1911, art. 2115, was so late as to leave for reply only 4 days, instead of the 20, contemplated by the statute, before time case was set for submission, and it cannot be said that this was enough, and there was no sufficient excuse for the delay, appeal will be dismissed under Rule 39 (142 S. W. xiii).
    3. Appeal and Ebbob <&wkey;797(2) — Dismissal — Late Filing of Bbiep — Time of Motion — Coubt Rule.
    Motion, under Rule 39 (142 S. W. xiii), to dismiss appeal for noncompliance with Rev. St. art. 2115, requiring appellant’s brief to be filed 5 days before transcript is filed in appellate court, is not governed by Rule 8 (142 S. W. xi), requiring motions affecting formalities attending the filing of transcripts to be filed within 30 days after the transcript is filed; as the briefs might still be filed after expiration of such 30 days in time to allow appellee 20 days for reply and excuse the delay.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action between Martin Jefferson and the Missouri, Kansas & Texas Railway Company of Texas. From an adverse judgment, the company appeals, and appellee files motion to dismiss.
    Appeal dismissed.
    Cross & Rogers and Edgar & Chas. Witt, all of Waco, for the motion. Nat Harris and W. E. Spell, both of Waco, opposed.
   KEY, C. J.

In this case the appeal was perfected on the 20th day of December, 1916, and the transcript was filed in this court on the 20th day of March, 1917. On December 5, 1917, the case was set for submission December 19, 1917. On December 18, 1917, ap-pellee filed a motion in this court to dismiss the appeal, because appellant had not complied with article 2115 of the Revised Statutes and Rule 39 of the Courts of Civil Appeals (142 S. W. xiii) relating to the time of filing briefs.

The statute referred to requires an appellant to file a copy of his brief in the trial court five days before the transcript is filed in the appellate court, and to cause notice thereof to be served upon appellee or bis attorney ; and Rule 39 makes a failure to comply with that statute ground for dismissing the appeal. However, the statute and rule have been construed by our Supreme Court as being directory, and not justifying the harsh remedy of dismissal when a reasonable excuse for noncompliance is made to appear, and when no injury will result to the appellee. Railway v. Holden, 93 Tex. 212, 54 S. W. 751.

In the instant case appellant did not file its bi'ief in the court below until the 18th day of December, 1917, but shows that three copies thereof were delivered to one of appel-lee’s attorneys on the 15th day of December, 1917. Copies of that brief were filed in this court on the 19th day of December, 1917, before the ease was called for submission. .The purpose of the statute requiring an appellant’s brief to be filed 5 days before the transcript is filed in the appellate court, and notice thereof to be given to appellee, is to enable appellee’s attorney to reply thereto within 20 days, the time allowed by the statute for appellee’s brief to be filed. In the case at bar, appellant not only failed to file -its brief within the time prescribed by the statute, but failed to do so before the case was set down for submission in this court, and filed it in the court below only one day before the time fixed for such submission, and copy thereof was not furnished to appellee’s counsel until 4 days before the latter time. Appellee’s attorney, who signed and verified the motion to dismiss, states that the time referred to was .not sufficient to enable appellee to properly reply to appellant’s brief, and we concur in that statement. But counsel for appellant, in their reply to the motion, claim that no harm would result to appellee by postponement of the submission, and ask that it be postponed for such time as the court may think reasonable to enable appellee to prepare and file his brief. They also set up the following excuse for appellant’s failure to file its brief in tire time prescribed by the statute and rules:

“And for further answer to said motion, if so required, appellant would allege and show to the court that it is the universal custom and practice among the lawyers of the bar at Waco to dispense with and waive the requirements of the statutes and the rules of this court with reference to the time and manner of filing briefs in this court; that attorneys for appellee were familiar with this custom and practice, and that in pursuance of said custom and' practice appellant did, on the 15th day of December, 1917, deliver to Mr. Edgar E. Witt, counsel for appellee, copy of its brief, together with the record in this case, and at said time requested the said attorney for appellee to sign the usual and customary waiver in all such cases, and also to sign request for the postponement of the submission of this cause so as to enable appellee to .answer the brief of appellant, but that the said attorney for appellee took the brief and record and stated that he would advise the attorney for appellant, W. E. Spell, of his decision on the afternoon of the 15th. On the afternoon of the 15th of December appellant’s attorney called the said Edgar E. Witt over the phone, and he, the said Witt, then stated that he had not had time to confer with his associate counsel, O. H. Cross, of the firm of Cross & Rogers, and that he would give his answer to appellant on Monday morning as to whether or not he would agree to waive the requirements as to the filing of the brief and agree to a postponement of the submission of this cause; that said Edgar E. Witt did not advise appellant’s attorney of his decision not to sign the waiver and not to agree to the postponement until about 2 o’clock on Monday, December 17, 1917, at which time the said Edgar E. Witt, attorney for appellee, stated that he would not sign the waiver with reference to filing of the briefs and would not agree to a postponement of the submission of this cause so as to enable him to file an answer.”

The facts stated do not excuse appellant for its failure to comply with the statute and rules.

This case is quite similar to House v. Bevy & Rosen, decided by this court last term, in which there was no written opinion, and in which a motion to dismiss the appeal upon similar grounds was sustained. In that case the appellees would have had ten days after the brief was filed in which to reply to appellant’s brief by the time the case was set for submission, while in this case only four days were left for that purpose. Hence we feel compelled to hold that the motion is well taken, and appellee is entitled to have the appeal dismissed. Railway v. Holden, 93 Tex. 212, 54 S. W. 751; Railway v. Martin, 62 Tex. Civ. App. 496, 132 S. W. 834; Krisch v. Richter, 125 S. W. 935; Gordon v. State, 151 S. W. 867; Manowitz v. Gaenslen, 142 S. W. 964; Gibbs v. Eastham, 139 S. W. 1166; Dodd v. Presley, 81 S. W. 811; Wiseman v. Maddox, 135 S. W. 756; Hamilton v. McLane, 147 S. W. 284; Speer v. Rushing, 178 S. W. 1012.

In Railway v. Martin, supra, the .Supreme Court approved the decision by denying a writ of error, and we copy with approval from Chief Justice Connor’s opinion in that case as follows:

“It seems evident that we cannot say as a matter of law that the time afforded is sufficient. The transcript was filed in this court January 13, 1910, and the statute (Rev. St. art. 1417) specifically requires an appellant or plaintiff in error to file with the clerk of "the trial court a copy of his brief not less than 5 days before the time of filing of the transcript in the Court of Civil Appeals. After such filing and notice thereof by the clerk, the appellee is then given 20 days within which to prepare and file copy of his brief in the court below. It thus appears that the law contemplates that an appel-lee shall be given ample time, presumably in no event less than 20 days, within which to answer the brief of appellant.”

In Dodd v. Presley, supra, this court, speaking through Chief Justice Fisher, said:

“This is a motion to dismiss the appeal because the appellant did not comply with the statute in filing his brief in the court below within the time required by law. The record in this case was delivered to the attorneys for the appellant, on April 13, 1904, and they filed their briefs in the trial court on the 13th day of May, 1904. The case thereafter was set down for submission, and was submitted, on the 1st day of June, 1904. Notice of the filing of the briefs was issued and served on appellee on the 13th of May, 1904. From the latter date appellee was entitled to 20 days’ time in which to file his brief in the Court of Civil Appeals. The 20 days had not expired when the case was submitted in this court, and there are no briefs on file for the appellee. Therefore we reach the conclusion that the failure of the appellant to comply with the statute deprived the appellee of a substantial right, and the motion to dismiss is sustained.”

We overrule appellant’s contention that this proceeding is governed by Rule 8 (142 S. W. xi), which requires motions affecting the formalities attending the filing of transcripts to be filed within 30 days after the transcript is filed. The case was not set down for submission in this court until about nine months after the transcript was filed; and therefore, if appellee had filed a motion to dismiss the appeal within 30 days after the transcript was filed, appellant, in reply to the motion, could have shown that it would soon file its brief in ample time for appellee to reply thereto before the case would be reached in this court, and upon such showing the appeal would not have been dismissed. Appellant’s failure to file its brief did not constitute sufficient ground for dis-mising the appeal until the time arrived when it was too late for appellee to reply thereto, and for that reason we hold that Rule 8 does not apply. In other words, it is appellant’s continued failure to comply with the statute for about nine months after the transcript was filed that forms the basis of appellee’s motion, and the greater portion of that failure occurred more than 30 days after the transcript was filed, and therefore Rule 8 does not apply.

It may be that our decision upon this point is in conflict with the decision of the Beaumont Court Of Civil Appeals, in Hamlet v. Leicht, 187 'S. W. 1004; but, if such be the case, we respectfully announce that we 'decline to follow that decision.

Brown v. Orange, 48 Tex. Civ. App. 470, 107 S. W. 607, the other case cited by appellant, is not regarded by this court as analogous.

For the reasons stated, the motion to dismiss has been sustained.

Motion sustained.
      <§s»For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J. HARPER, C. J.

text:
    WERNER et al. v. NEEDHAM.
    (No. 789.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 31, 1918.
    On Rehearing, Feb. 28, 1918.)
    1. Appeal and Error <&wkey;>722(l) — Preservation op Exceptions — Assignments in Tbial Court.
    Alleged errors based upon matters occurring after the motion for new trial is overruled may be raised by filing assignments of error in the trial court.
    2. Appeal and Error &wkey;>840(2) — Review — Recqrd — Jurisdiction.
    Error in sustaining general demurrer to pleadings is fundamental, and it is the duty of appellate courts to pass upon the jurisdiction of the trial court to render the judgment, whether the question is raised by bill of exceptions or assignment of error or not.
    3. Removal of Causes <&wkey;95 — Eeeect.
    When defendant filed his petition for removal to the federal court and his bond which was approved, the state court lost all jurisdiction of the cause and was without authority to proceed further, though defendant filed a cross-action and consented to a change of venue in the state court.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Leslie A. Needham, as trustee, against Robert G. Werner and others. From the decree rendered, defendants appeal.
    Reversed and remanded.
    Jno. B. Howard and Clay Cooke, of Pecos, and McKenzie & Loomis, of El Paso, for appellants. Leslie A. Needham, of Chicago, Ill., T. A. Falvey, of El Paso, and Ross & Hubbard, of Pecos, for appellee.
   HARPER, C. J.

This is a suit by Leslie A. Needham, trustee, against Robert G. Wer-ner, the Arno Co-operative Irrigation Company, a corporation, R. S. Johnson, F. E. Knapp, John B. Dandridge, and Spencer B. Pugh, for title and possession of 7,804 shares of stock of the irrigation company, as adjudicated by this court in consolidated causes Nos. 1190 and 1345, in 1914. For more extensive statement of the issues between these parties w.e refer to the opinion in said causes reported in 177 S. W. 991. The only difference between this suit and those above as to issues involved is that here Needham alleges the same shares of stock have since been assigned to him and he instituted this action for the purpose above indicated.

The first assignment:

“The judgment rendered herein is void, and the court was without jurisdiction to render same, because this cause had been properly removed into the District Court of the United States for the Western District of Texas, and since the rendition of the judgment herein the said United States District Court has made its order herein upon said removal, overruling the motion of the plaintiff! to remand this cause to the state court and retaining jurisdiction over same, and the jurisdiction and powers of the said state court herein was and is suspended and superseded by said removal and the order 9f said United States District Court retaining jurisdiction thereof upon such removal, as shown by the transcript of the proceedings in said United States District Court filed herein.”

The proposition is:

“Upon the filing of a petition and bond in due form for the removal of a cause to the United States District Court, said cause being a removable cause, the jurisdiction of the state court over said cause and subject-matter thereof ceases, and all further proceedings in the state court are coram non judice and void.”

Appellee objects to the consideration of this assignment: (1) Because it was not con-tamed in the motion for new' trial; (2) because the statement does not set np all the record; (3) because there was no bill of exceptions retained to the act of sustaining demurrer to the plea in abatement.

The plea in abatement, supported by affidavit, shows that this cause had been removed to the United States District Court for the Western District of Texas. The fact of removal is not in dispute. After the trial of this cause, and after motion for new trial had been overruled, a motion to remand this cause to the state court was overruled by the judge presiding over the United States District Court. A copy of this order was filed and made a part of the record of this cause. This assignment of error is based upon this matter which occurred after the motion for new trial was overruled. Such questions may be raised by filing assignments of error in trial court. Dees v. Thompson, 166 S. W. 56. It is fundamental error to sustain general demurrer to pleadings, and it is uniformly held that it is the duty of appellate courts to pass upon the jurisdiction of the trial court to render the judgment appealed from whether the question is raised by bill of exceptions or assignment of error or not. Hamm v. Hutchins, 19 Tex. Civ. App. 209, 46 S. W. 873; Ivey v. Davis, 178 S. W. 972; Milner v. Sims, 171 S. W. 784. When the appellant filed his petition and bond and the bond was approved, the state court lost jurisdiction of the cause and was without authority to proceed further. Texas 6 Pac. Ry. Co. v. Davis, 93 Tex. 388, 54 S. W. 381, 55 S. W. 562; S. P. Co. v. Harrison, 73 Tex. 103, 11 S. W. 168; Weller v. Guajardo, 174 S. W. 673; Wells Fargo Express Co. v. Hale, 175 S. W. 469. Appellee urges that by filing cross-action and seeking affirmative relief in the state court, and by voluntarily agreeing to a change of venue of the cause in the state court, jurisdiction is vested in state court.

The question is settled to the contrary. National S. C. Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 D. Ed. 87 ; Weller v. Guajardo, 174 S. W. 673. These questions must be determined by the United States court. Burlington R. Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159.

Because the case was pending, upon removal, in the United States District Court, at the time this trial was had, the state district court of El Paso county had no jurisdiction. It was therefore error to proceed with the trial.

There are other questions raised by the brief; but, since the above holding is fatal to appellee’s judgment, we refrain from passing upon them.

Reversed and remanded.

WALTPIALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.

On Rehearing.

HARPER, C. J.

The statement in the original opinion that it was settled to the contrary of appellee’s contention “that by filing cross-action and seeking affirmative relief in the state court, and by voluntarily agreeing to a change of venue, appellant had waived his right to trial in federal court,” is withdrawn. This was not the test question in the case as to the jurisdiction of the trial court, and it was not intended by the opinion to-make it so; but it was based wholly upon the fact therein stated that appellants had filed’ their petition and bond, the bond was approved, that thereby the state court lost jurisdiction, and it being a federal question as to-whether the United States District Court should retain jurisdiction, and the appellee having on October 2,1916, filed in the federal’ court his motion to remand the cause, and it having been by that court overruled, thereby-determining the question and retaining jurisdiction, the state court had no authority to-proceed to the trial of the cause in February, 1917.
      ⅞=>1⅛1 other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: RICE, J.

text:
    EARLY-FOSTER CO. v. M. M. GRAVES CO., Inc.
    (No. 5808.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1917.
    Rehearing Denied Feb. 27, 1918.)
    1. Sales <®=>152 — Order for Less Than. Contract Price — Breach by Buyer.
    Under contract for purchase of goods to be-delivered upon buyer’s order not later than given date, seller not guaranteeing against decline in market, an order to ship goods at a rate-lower than contract price was no order under the contract, and was a breach of the contract.
    2. Costs <®=ol72— Attorney’s Fees — Contract.
    Under sale contract providing that if claim arising from buyer’s failure to accept goods should be placed with attorneys for collection, the buyer should pay 10 per cent, on contract-price of goods as attorney’s fees, held,, that such fees should be computed on the actual amount sought for the breach.
    Appeal from District Court, McLennan County; H. M. Richey, Special Judge.
    Suit by the M. M. Graves Company, Incorporated, against the Early-Foster Company. Judgment for plaintiff for partial relief, and both parties appeal.
    Judgment affirmed.
    Nat Harris and Spell & Sanford, all of’ Waco, for appellant. Hutcheson & Hutche-son, of Houston, and Sleeper, Boynton &- Kendall, of Waco, for appellee.
   RICE, J.

On September 12 and 14, 1914-, appellee and appellant entered into two separate contracts, whereby the latter under the-first contract agreed to purchase and the former to sell five carloads of bagging and ties, consisting of 1,500 patterns each-, at 70 cents per pattern; and by the latter two-carloads, consisting of 1,500 patterns each, at 71 cents per pattern, each of said contracts containing provisions to tlie following effect: That the seller did not guarantee price against decline in market; and that such contracts were not subject to cancellation. They each likewise provide:

“That in event any claim shall .arise hereunder, due to failure on the part of purchaser to accept the goods as herein agreed, and claim for the same be placed in the hands of attorneys for collection and enforcement of contract, that the buyer shall pay the sum of 10 per cent, on contract value of goods as attorney’s fees. The bagving and ties covered by these contracts to be shipped by November 30, 1914.”

Also another provision to the effect:

“That in case the buyer neglects to order out all the goods due under this contract before the last-mentioned date, and in event of default on this contract, it shall be unnecessary to tender goods at point of delivery; but seller’s offer to deliver goods f. o. b. shall be a sufficient tender, and the purchase price shall be then payable, as though goods had been received and accepted by purchaser.”

It appears that during the life of these contracts that the manufacturers reduced their price on bagging and ties 16½ cents pér pattern. Appellant ordered out two carloads under the first contract, which were shipped and paid for by it at the contract price, but insisted as to the balance that it was entitled to a reduction on its purchase in accordance with the manufacturers’ price; and in line with this contention, on the 25th of November, 1914, wired Graves Company as follows:

“Ship car fifteen hundred patterns two ^ound American Ashdown, Arkansas, two cars fifteen hundred patterns each Texas Durant, Oklahoma, deducting Texas common point freight rate. Car fifteen hundred patterns Texas Quanah, Texas, and car fifteen hundred Texas Cisco, billing all at manufacturer’s price, adding the same profit you had in the sale when contract was made. Also deduct difference in manufacturer’s price on the three cars shipped since your price was reduced. .Send drafts Central Texas Exchange National Bank, 'Waco.”

Graves Company replied, in substance, that they were willing to ship the goods, but only at contract prices, and offered to do so; and in all other respects complied with their contract. Appellant not replying, the goods were not shipped, and this suit was brought by appellee in Harris county to recover damages for -breach of contract. Appellant also brought suit in the district court of McLen-nan county against appellee to recover $577.-50, being the difference between the contract price and the manufacturers’ price on two carloads, which had been paid for by it. The first suit was transferred to McLennan county, where the two cases were consolidated, and on trial appellant abandoned its cause of action against appellee, and judgment was rendered in accordance therewith, which case is not involved in this appeal.

The instant case, being tried before the court without a jury, resulted in judgment in behalf of appellee, from which appellant prosecutes this appeal, and strenuously urges that the case should be reversed on the ground that it did not breach its contract with appellee. ‘

We differ with appellant in this contention. The order was not in compliance with the contract, but imposed conditions upon appellee not to be found therein, and was in fact equivalent to no order at all. Appellee had the right to rely upon its contract as written, and failure on the part of appellant to order the goods out in accordance therewith constituted a breach, which authorized its recovery. And this is trué, irrespective of whether or not appellee received the benefit of such reduction, because the contract expressly provided that appel-lee did not guarantee “price against a decline in market,” but the evidence amply shows that appellee did not receive any benefit on account of reduction in price, of which fact appellant was apprised.

Appellee insisted by cross-assignment that it was entitled to a [judgment of $500 attorney’s fees, instead of $122, as awarded it by the court, upon the ground that the contract provided that in the event the claim was placed in the hands of attorneys for collection, that it was entitled to 10 per cent, on the value of the goods contracted for. We think appellee’s contention is not well founded, but that it was only entitled to 10 per cent, of the actual amount sought to be recovered by reason of the breach of contract, which was in fact the amount in controversy, for which reason its cross-assignment is overruled.

Finding no error in the judgment of the court, the same is in all respects affirmed.

Affirmed.
      ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    BAKER v. THOMAS.
    (No. 320.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 7, 1918.)
    1. Witnesses ©=>240(5) — Leading Question.
    The question, “When you came to my office to employ me in this case, did you not tell me then that the mule was stz-uck and killed just like you told it to the jury this morning?” was leading.
    2. Evidence ©=^271(5) — Sele-Servinu Declarations — Statement to Attorney.
    Such question being asked after plaintiff had been cross-examined with reference to eei*-taiu statements made by her in writing to defendant railroad’s claim agent wherein she made a different statement as to the facts surrounding the killing of the mule called for a self-serving declaration that would he an attempt to bolster up plaintiff’s testimony.
    Appeal from Robertson County Court; W. M. Johnson, Judge.
    Suit by Sallie Thomas against James A. Baker, Receiver of the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.

      Perry & Woods, of Franklin, for appellant. H. S. Moreliead and H. A. Bosh, both of Franklin, for appellee.
   KING, J.

Appellee filed this suit in the justice’s court of precinct No. 1, Robertson county, for alleged damages in the sum of $190, alleging that on or about the 19th day of June, A. D. 1916, she was the owner of a certain mule that was killed by the negligence of appellant’s agents, servants, and employes in the operation of a locomotive engine and train near the station of New Baden in said county, the specific acts of negligence alleged being that the agents, servants, and employes of appellant in charge of said locomotive engine and train failed to ring the bell, sound the whistle, or to make, or cause to be made, any other sound or alarm to frighten said mule off the track and right of way, after said servants and employes discovered the danger-to the mule, or by the use of ordinary care could have discovered same, and in failing to keep a lookout to discover the danger and peril of said mule, and in failing and refusing to give and sound the statutory signals for stations, crossings, and for stock alarm, and in running said engine and train at a dangerous and high speed; that the point and place where said mule was struck and killed was a point where appellant could have fenced his right of way and track, and had failed to do so. Appellant answered by general demurrer and general denial, and, further, that said mule was killed at a place where appellant could not, with safety to his employés and convenience to the public, fence his track, and where he was not required by law to fence said track, further setting out the reasons why he was not so required to fence the track. Appellant recovered judgment in the justice’s court, and the same was appealed by appellee to the county court of Robertson county, and on the 24th day of November, 1916, at a trial before a jury, judgment was rendered against appellant in the sum of $135, in accordance with the answers of the jury to special issues submitted to them by the court.

The first and only assignment of error is as follows:

“The court erred in admitting the following testimony offered by the plaintiff over defendant’s objection, to wit: Plaintiff, testifying as a witness in her own behalf, on redirect examination, was asked by her counsel the following question: ‘Sallie, when you came to my oiiice to employ me m this case, did you not tell me then that the mule was struck and killed just like you have told it to the jury this morning, and didn’t you tell me then that you heard the whistle down at the culvert, and that you then looked down the track toward the station, and saw your mule standing on the track?’ to which said question defendant objected : (a) Because it was leading; and (b) because it called for a self-serving declaration on the part of the plaintiff that would be an attempt to bolster up her own testimony by such self-serving declaration. Said objection was overruled by the court, and the witness was permitted to testify as follows: ‘Yes, I told you how it happened just like I told the jury. I told you the mule was standing on the track, eating grass, when I first heard the train coming.’ ”

This assignment of error must be sustained. Tbe question was clearly leading, and was error. I. & G. N. Ry. Co. v. Dalwigh, 92 Tex. 655, 51 S. W. 500, and authorities therein cited.

This question also called for a self-serving declaration on the part of plaintiff that would be an attempt to bolster up her own testimony, it being introduced by ap-pellee after she had been cross-examined by appellant with reference to a certain statement she had made in writing to his claim agent on October 28, 1916, wherein she made a different statement as to the facts surrounding the killing of the mule than she made upon the trial of the case. This was error. Ætna Ins. Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; Pecos & N. T. Ry. Co. v. Winkler, 179 S. W. 691; Kirby Lumber Co. v. Youngblood, 192 S. W. 1106.

For tbe errors pointed out, the cause is reversed and remanded.
      otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, O. J.

text:
    SUMMERGILL v. JEMISON.
    (No. 301.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 5, 1918.)
    1. Appeal and Error <S=^719(8) — Assignment of Error — Pleadings—Insufficiency to Support Judgment.
    If appellant’s contention that there is no-basis in the pleadings for the judgment be correct, the judgment should be reversed without formal assignment in that regard.
    2. Sales @=^360(1) — Suit against Buyer— Recovery of Rental Value.
    Where mules were sold for an agreed price and no title or lien reserved, there could be no recovery against the buyer for the rental value of the mules.
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Suit by T. L. Jemison against James Sum-mergilL and others. Judgment against defendant named, and he appeals.
    Reversed and remanded for new trial.
    V. A. Collins, of Beaumont, and H. B. Tucker, of Port Arthur, for appellant. J. V„ Fleming, of Beaumont, for appellee.
   HIGHTOWER, O. J.

Appellee, as‘plaintiff below, filed this suit on May' 31, 1915, making James Summergill, John Brown, and Tom Brown defendants thereto, but after-wards, and before trial of tbe case below, Tom Brown was dismissed from the suit, and the cause proceeded to trial against Summergill and John Brown as defendants, and upon the trial, judgment was rendered in favor of appellee against Summergill alone, who is the appellant here.

It was substantially alleged in appellee’s original petition that his father, W. J. Jemi-son, on April 24, 1015, sold to the defendants named a span of mules, and that at the time of such sale, the defendants promised to pay appellee’s said father $50 in cash and $350 in addition, just as soon as a settlement between the parties relative to some other business matters between them could be had; that the $50 cash payment was to be put up as earnest money to bind the trade until said settlement could be made, hut that as a matter of fact only $5 in cash was put up at the time, that amount being all that defendants had at the time of making the contract, but that defendants agreed to put up $45 in. cash the very next day; that the settlement between appellee’s father, W. J. Jemison, and the named defendants relative to the other business transaction between the parties was had and made, but that defendants had never paid the purchase price of said mules, either to appellee’s father, W. J. Jemison, or to appellee himself, with the exception of the $5 cash payment. Appellee further alleged that subsequent to the contract between his father and defendants for the sale and purchase of the mules,, and on or about April 26, 1915, appellee purchased from his father the account owed his father by said defendants, and that by reason of his purchase of such account against defendants, appellee became the legal owner and holder of same, and was entitled to collect the same; that in consequence of the default on the part of defendants in making payment of the purchase price of said mules, defendants had • forfeited all right to the mules, and that appellee was entitled to the possession of said mules, or, in lieu thereof, the price which defendants had agreed and bound themselves to pay for said mules, which was the sum of $400. There is a further allegation in the petition to the effect that said defendants had had possession of the span of mules since April 24, 1915, and that appellee had been deprived of the use and benefit of said mules since that time; and the further allegation that appellee depended upon said mules for a livelihood, and that they were worth $5 per day to him, and that he could have and would have made $5 per day by the use of said mules during all the time that defendants had possession of them, had their possession been held by ap-pellee; that defendants, though often requested, had failed to pay the purchase price of said mules, and had also failed and refused to release said span of mules, to ap-pellee’s damage in the sum of $400, as the purchase price of said mules, and $5 per day .since April 24, 1915. The prayer was:

“That he have judgment against the said defendants, and each of them, for the sum of $400, or, in lieu thereof, the possession of the said one span of mules; that he be allowed $5 a day since the 24th day of April, A. D. 1915, as damages sustained by reason of the fact that he has been deprived of the use and benefit of said mules; that he be allowed the sum of $25 for attorney’s fees, herein expended, which is just and reasonable, for costs of this suit, and for such other and further relief, special and general, in law and in equity, that he may be justly entitled to, etc., and in duty bound will ever pray.”

Each of the defendants answered by special answer, and each interposed a general demurrer and certain special exceptions, and a general denial, and some of them other pleas which are unnecessary to more specifically mention here, for the reason that the same are entirely immaterial to the disposition of this appeal. The case was tried with a jury, and, when the evidence was concluded, the record discloses that it was agreed that the trial court (county court of Jefferson county) need not deliver any charge to the jury, either written or verbal, and after argument by counsel for both sides, the jury returned a verdict in favor of appellee against appellant, Jas. Summergill, for $395, which the verdict stated was the value of the mules, and also for $612, which the verdict stated was the rental value of the mules at the rate of $1 per working day from May 24, 1915, to the date of trial; upon which verdict the trial court entered judgment in favor of appellee against appellant, Sum-mergill, for $1,007, with interest thereon from the date of the trial at the rate of 6 per cent, per annum. The jury having expressly found that appellee should take nothing as against defendant John Brown, as to him judgment was entered accordingly.

It appears from the record that there was also filed by appellee, at the time the trial commenced below, what is termed “Plaintiff’s Eirst Trial Amendment.” In this instrument it is alleged that the plaintiff dismisses his causé of action as to the defendant Tom Brown, and thereafter this instrument proceeds as follows:

“That the team of mules referred to in said original pleading was sold by the party mentioned therein to James Summergill, and that after said money was not put up as a forfeit as agreed on, that the plaintiff repossessed himself of the mules, as he had a right to do, forbade the defendants from taking said mules; but that, notwithstanding the same, the defendants Summergill and Brown unlawfully seized and possessed themselves of said mules, and thereby deprived the plaintiff of said team, and by their withholding the same, notwithstanding demand therefor has been made, have damaged the plaintiff in the value thereof, and the rental thereof, from and since the 23d day of May, the year mentioned in said petition. That the allegation therein of the date of the forfeit money was paid should be May, instead of April, of the year mentioned.”

And the prayer was:

“Wherefore, premises considered, plaintiffs pray for judgment as in their former pleadings.”

There are several assignments of error found in appellant’s brief, but we shall not discuss them in the order made, and, indeed, some of them could not be considered at all in the absence of a statement of facts, and there is no statement of facts in the record; and tlie vital and main assignment, wJiicIi challenges the verdict and judgment on the ground that there is no basis in the pleadings for same, is the only one that we shall consider; and, if this contention by appellant be correct, this court should reverse the judgment and remand the cause, without formal assignment of error in that regard.

It is apparent from the allegations in appellee’s petition, as we have stated the same substantially above, that the mules in question were agreed to be sold by appellee’s father to the defendants, for the price of $400; and, while it is alleged that $50 was to be paid in cash as earnest money to bind the trade, but that as a matter of fact only $5 in cash was actually paid at the time of such contract, nevertheless it appears that ap-pellee’s father delivered possession of these mules to the defendants, and that thereafter, appellee’s father, for valuable consideration, sold to appellee the account or demand which the father held against the defendants, but there is no allegation whatever of fact to the effect that in the contract between appellee’s father and defendants for the sale and purchase of the mules, the; title to the mules was to remain in appellee’s father until paid for, or even that any lien of any character was to be retained by appellee’s father to secure the purchase money agreed to be paid by defendants for said mules; and there is no allegation of fact whatever that at the time appellee’s father sold him the account or debt owed the father by defendants as the purchase price of said mules, he, the father, also sold or transferred, or even attempted to sell or transfer, to appellee any title or interest of any character whatsoever in or ⅛> said mules; but appellee did assume in his petition that he became the owner of said mules themselves, or was entitled to take possession of them from the defendants upon their breach or failure to comply with their contract of purchase with appellee’s father, in which assumption appellee was wrong, so far as anything disclosed by his petition is concerned.

Appellee’s petition as a whole, and what is termed his ‘Trial amendment,” considered in connection with his original petition, shows clearly that his cause of action is one for the recovery of the purchase price of the span of mules, as agreed upon between his father and the defendants, which was alleged to be $400, and also for interest at the legal rate on that amount from the date of the sale and delivery of said mules by his father to defendants; and, indeed, his prayer, in substance, is that he recover this contract price, and only in the alternative that he recover the mules themselves.

Now, as stated above, the petition shows that $5 of the contract price was paid in cash, leaving a balance of $395, which ap-pellee alleges was never paid by defendants, either to his father or to himself, after he became the owner of this indebtedness, and the jury’s verdict is to affirm, substantially, the contention of appellee that these mules were sold by his father to defendants, and that $395, the balance due on the contract of purchase, was never paid by defendants, and that appellee, being the purchaser of this indebtedness against defendants, was entitled to recover this $395; otherwise, there would be no basis whatever in the pleading for this $395, because it is nowhere alleged, either in the original petition or in what is called ap-pellee’s trial amendment, what the value of these mules was, and nothing is stated in that connection as to value, save and except the allegation that defendants promised to pay appellee’s father $400 for these mules. We say that the jury’s verdict confirms these allegations and theory of appellee, but in addition to awarding appellee, by their verdict, $395, the jury also awarded him $612 as the rental value of said mules, as above shown, in the verdict which we have quoted.

Now, the question is, the jury having in effect found that the sale of the mules was made by appellee’s father to defendants, for the agreed price of $400, as alleged by appel-lee, and the only allegations in appellee’s petition being substantially that he became the owner of the indebtedness owed by defendants to his father as the purchase price of these mules, Was there anything in the pleadings to authorize the verdict and judgment in favor of appellee for the contract price of these mules, and also the additional sum of $612, asi their rental value from the time they were purchased by and delivered to the defendants? We think, clearly, that the only recovery that appellee could have legally had against appellant would have been the balance of the purchase money which was due appellee for these mules, together with interest thereon at the legal rate, from the date of the sale and delivery of these mules to appellant, and therefore we hold that the trial court was in error in rendering judgment against appellant for the balance of the purchase money due for these mules, and in addition thereto, their rental value as found by the jury from the time of their sale and delivery to appellant.

What we have said is, of course, to be construed and confined to the pleadings of the parties as they now stand, and not to what issues may be properly pleaded and submitted on another trial.

The judgment of the trial court is therefore reversed, and the cause remanded for a new trial.
      <fc^ITor other case.* see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. BOYED.
    (No. 319.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 18, 1918.
    Rehearing Denied March 6, 1918.)
    1. Municipal Corporations <S=>122(1) — Ordinance — Pleading.
    Petition charging defendant railroad with negligence “in violating the ordinance of the city * * * in running at a much greater rate of speed than is permitted and allowed by Said ordinance duly enacted and in force at the time of the accident,” is sufficient to notify defendant that the ordinance will be offered in evidence, and a good pleading thereof, at least in the absence of special exception.
    2. Trial <§=76 — Objection to Evidence — Time op Making.
    The specific objection to introduction of ordinance that it had not been published must he made at the time of ⅛⅛1, that it may thereafter be available.
    3. Appeal and Error <§=926(2) — Review-Presumption.
    In support of trial court’s ruling, it will, in •absence of evidence to the contrary, be presumed •that an ordinance was published, as required by law.
    4. Death <3=18 (3) — Recovery by Child — Right.
    It being the legal duty of a father to support a minor child, such child may recover for the father’s death by negligence the amount of ■damages sustained, not depending on whether the father had supported, or intended to support, the child.
    5. Death <§=97 — Child’s Right oe Recovery-Measure oe Damages.
    Measure of damages for death of minor’s father is essentially indefinite, not capable of exact ascertainment, and so left to the sound discretion of the jury.
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by Hattie Boyed individually and as next friend of Anthony Boyed, a minor, against the San Antonio & Aransas Pass Railway Company, Judgment for plaintiff in her representative capacity, and defendant appeals.
    Affirmed.
    Henderson, Kidd & Henderson, of Cameron, for appellant. U. S. Hearrell, of Cameron, for appellee.
   BROOKE, J.

This suit was filed by Hattie Boyed, for herself and as next friend for her minor son, Anthony Boyed, against appellant, San Antonio & Aransas Pass Railway Company, to recover damages for the death of Car-field Boyed, alleged to have been the husband of Hattie Boyed and the father of Anthony Boyed. Appellee’s original petition alleged -that the death of the deceased was caused by the negligence of the appellant’s servants and employes in the handling of one of appellant’s, trains, which struck and killed the deceased. A trial before a jury resulted in a verdict and judgment in favor of Anthony Boyed against appellant in the sum of $600, and in a verdict and judgment in favor of appellant as against Hattie Boyed. Appellant filed motion for new trial of the said Anthony Boyed’s cause of action, which was by the court overruled, to which action of the court in overruling said motion appellant duly excepted, and gave notice of appeal. Appellant perfected its appeal, which is presented to this court upon assignments urged in the motion for new trial.

The first'assignment of error is as follows:

“The court erred in overruling defendant’s objection to the introduction of the city ordinances as evidence in said cause, and in permitting snch ordinances to go to the jury as evidence in said cause; because the plaintiffs’ pleading was insufficient to warrant the introduction in evidence of such ordinances, and because said ordinances were not proven up or shown to have been in force at the time of the accident and injury complained of, as fully shown in defendant’s bill of exception.”

Under this assignment three propositions are urged, as follows:

(a) “The courts of this state do not take judicial knowledge of the ordinances of cities incorporated under the general laws; and such ordinances must be alleged and proved as any other facts.”
(b) “Ordinances of a city which is incorporated under the general laws of the state are not admissible in evidence until they are shown to have been printed and published by authority of the city council of such city.”
(c) “No ordinance of any city incorporated under the general laws of this state imposing a penalty or fine takes effect or is in force or becomes operative until it is published for ten days in the official paper of such city.”

The petition complained of charged appellant with negligence—

“in violating the city ordinances of the city of Cameron in running at a much greater rate of speed than is permitted and allowed by said ordinance duly enacted and in force at the time of the accident.”

In our judgment, the allegation was sufficient to notify the appellant that the city ordinance would be offered in evidence, and it was good, at least in the absence of a special exception. Appellant did not except to the petition specially. In the trial court appellant did not object to the ordinance on the ground that it had not been published, and it is urged that it is now too late to urge such objection in this court. It is also urged that objections to evidence must be specific, and on appeal the appellant will be confined to the very objection made in the court below.

We are of opinion that the action of the trial court was correct in holding, under the opinion in the case of Tompkins v. Pendleton, 160 S. W. 290, that Ihe contention of appellant could not be sustained, for the reason that the specific objection was not made at the time of trial; also under the holding in Railway Co. v. Fielder, 163 S. W. 606, and Railway Co. v. Owens, 75 S. W. 579. In addition to that we, in the absence of testimony to the contrary, presume in support of the trial court’s ruling that the ordinance was published, as required by law. The assignment therefore is overruled. What is said here applies also to the second assignment of error.

The third assignment of error is as follows:

“The court erred in section No. 4 of its charge to the jury, which section of said charge, in effect, instructs the jury that the amount of damages which plaintiff Anthony Boyed would be entitled to recover for the negligent death of his father would not depend on whether the father had supported or intended to-support said plaintiff Anthony Boyed, because said plaintiff Anthony Boyed would be entitled to recover for the negligent death of his father only the value of (such benefits as he had a reasonable expectation of receiving from his father had he lived, and the question as to whether the father intended to support the child Anthony Boyed would very largely control the amount and value of such benefits as said Anthony Boyed could reasonably expect to receive from the father had he lived.”

The entire paragraph of the court’s charge referred to in the above assignment is as follows:

“It is the legal duty of the father to support his children during their minority according to their station and condition in life, and if such child is, by the negligence of another, deprived of this right, he may recover the amount of damages thereby sustained, and such right ■ or the amount of the damages does not depend on whether the father had supported, or intended to support, the child. Therefore you are instructed that, if you believe from the evidence that Anthony Boyed is the child of Hattie Boyed and the deceased, Garfield Boyed, and you further believe that the defendant was negligent in any of the matters as hereinbefore charged you, and that said negligence was the proximate cause of the death of Garfield Boyed, then you will allow his mother, as next friend, the amount of damages thereby sustained by said child, Anthony Boyed, and he governed by the rule in the assessing of same as hereinafter given you; but, on the other hand, if you believe that Anthony Boyed is not the child of the plaintiff Hattie Boyed by Garfield Boyed, then you will find for the defendant, as to said Anthony Boyed’s cause of action by Hattie Boyed as next friend.”

The charge of the court complained of in this assignment seems practically to be the same as the opinion of the court in Railway Co. v. Anderson, 126 S. W. 928, and authorities there cited. In our opinion there is no merit in the assignment, and it is therefore overruled.

The fourth assignment is as follows:

“The verdict of the jury in favor of Hattie Boyed, as next friend of Anthony Boyed, is greatly excessive, in that the evidence shows conclusively that if plaintiff Anthony Boyed is the child of the deceased, Garfield Boyed, said plaintiff would never have received from the deceased, had he lived, the sum of $600 either in pecuniary benefits or nurture, care or education, and that said plaintiff Anthony Boyed had no reasonable expectation of receiving from the deceased, had he lived, any such sum or any benefits of any nature whatever of the value of $600.”

' The measure of damages in cases of this character is essentially indefinite, and not capable of exact ascertainment, and therefore it is left to the sound discretion of the jury. This record fails to show that the jury were influenced by any improper consideration in arriving at their verdict, and we are unwilling to reverse this case upon that ground.

Believing that the appellant has had a fair trial of the case, the same is in all things affirmed.
      <g=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    SMITH v. THOMPSON et al.
    (No. 7871.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1918.
    Rehearing Denied Feb. 23, 1918.)
    1. Appeal and Error <@=31002 — Scope—Findings de Fact.
    The court on appeal will not disturb a verdict rendered upon conflicting evidence sufficient to authorize the judgment.
    2. Deeds <@=>206 — Evidence—Sueeiciency.
    In suit to cancel a quitclaim deed, evidence held to show that plaintiff intentionally and with full knowledge of the nature, character, and consequences of his act, and without any mistake of facts, executed and delivered the deed intending to divest himself thereby of his interest in the land.
    •3. Deeds <S=>58(2), 65 — Delivery—Efeect.
    Delivery of a deed expressing consideration of love and affection by a grantor who understood the nature and consequences of Ms act to an agent, who delivered it to the grantee, who had it recorded, was a sufficient delivery and acceptance to pass the title.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.'
    Suit by Ben L. Smith against Maude Eva Thompson and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    M. M. Parks and W. L. Mathis, both of Dallas, for appellant. Carden, Starling, Car-den, Hemphill & Wallace, of Dallas, for ap-pellees.
   TALBOT, J.

This' suit was instituted by the appellant, Ben L. Smith, against the ap-pellees, Maude Eva Thompson and her husband, T. M. Thompson, on May 13, 1915, in which appellant sought to have the premises described in his petition, being lot No. 19 in block No. 267, according to the official map of the city of Dallas, partitioned. It is alleged, in substance, that said land and premises were the community property of appellant’s father and mother at the date of his mother’s death; that his mother died intestate about 34 years prior to the filing of this suit, when appellant was a small boy, leaving surviving her Samuel G. Smith, her husband, and six children, including appellant and appellee Mrs. Thompson; that appellant owned by inheritance from his mother an undivided one-twelfth interest in the land and premises described ; and that the appellee Maude E. Thompson, his sister, owned the other eleven-twelfths, the other children of his father and mother having conveyed their interest in said premises to the father after the death of the mother, and the father having died on the 27th, day of February, 1912, leaving a will in which he bequeathed said property to appel-lee, Maude Eva Thompson. It was further alleged that the will of Samuel G. Smith had been duly probated and that the land and premises in question were subject to partition.

The appellees answered, denying that the appellant had any interest whatever in the property in question, setting out that the interest which he had in the premises, by reason of the facts set forth in his petition, was acquired by the appellee, Maude Eva Thompson from the appellant by virtue of a certain quitclaim deed, which the appellant for a good and valuable consideration executed and caused to be delivered to the said Maude Eva Thompson on or about May 21, 1912, which deed was filed for record May 22, 1912, and duly recorded. The appellees also set up that they had, since the execution and delivery of said deed, improved said property and had incumbered the same by giving a good and valid lien thereon to innocent purchasers, -tvho had relied upon the execution, acknowledgment, delivery, and record of said deed. Thereupon the appellant filed his first supplemental petition, in which he denied the signing of said quitclaim deed, and said that, if he signed the same, “his signature thereto was procured by fraud and fraudulent statements made to him by the appellees and their agent, William McKee; that the said McKee, acting for and in behalf of the appellees, called upon appellant where he was at work late one afternoon and requested permission of appellant’s employer to see appellant for a short time, which request was granted with the understanding that appellant be not detained for more than two or three minutes; that the said McKee thereupon took from his pocket some kind of an instrument in writing and presented same to appellant for his signature, and at the same time explained to appellant that said instrument in writing pertained to appellant’s father’s estate of which he (William McKee) was administrator, and that said estate was ready to be closed, but before he would be able to do so it would be necessary for him to have appellant’s signature to said deed or instrument in writing; that appellant did not know that said instrument was a quitclaim deed, as is now claimed by appellees, and, had he known said instrument was intended by appellees to be a quitclaim deed to his interest in said estate, he would not have signed same. Appellant further alleged that he had known the said William McKee for a great number of years and had implicit confidence in him and fully believed and relied upon his statements; that he knew the said McKee was administrator of said estate, and that it was about time for the administration of the estate to be closed, and did not know but what it was necessary for appellant to sign some kind of an instrument along with other children in closing up said administration; that he did not know that the said McKee was acting as agent for the appellees; that he did not know that said McKee and appellees were seeking to interfere with his deceased mother’s interest in the property involved in this suit or the ones claiming it under her; that he did not have time to read over the instrument in writing presented for his signature and wholly relied upon the statements of the said McKee that the same only pertained to his father’s interest in said estate and did not affect his deceased mother’s interest therein, nor those claiming under her. Appellant further averred that he did not intend to convey the interest in said estate coming to him from his deceased mother’s interest'therein, and desired to keep the same as it was intended by his deceased mother and father that he should do; that if said instrument in writing or quitclaim deed contained recitals conveying to said appellee, Maude Eva Thompson, appellant’s interest in said estate coming to him through his deceased mother’s interest therein and that he signed same with such recitals in it, then his act in so doing was by accident and mistake on his part and without knowledge on his part that such recitals existed therein; that no intention on his part existed at said time to convey or dispose of his interest in said estate coming to him through his deceased mother’s interest therein. There is also an allegation that no consideration passed between appellant and appellees for the execution of said instrument or quitclaim deed.

The trial was before the court without a jury. There are no conclusions of law and fact, and no request was made therefor. The court, however, entered judgment, which contained the following recital:

“And it appearing to the court from the evidence that the plaintiff, Benjamin L. Smith, has no interest in the premises described in his petition; that by the deed from the plaintiff, Benjamin L. Smith, to the defendant Maude Eva Thompson, of date May 21, 1912. which said deed was filed for record May 22, 3912, and which is of record in volume 548, p. 162, of the record of deed of Dallas county, Tex., the plaintiff, Benjamin L. Smith, conveyed to the defendant Maude Eva Thompson all of his right, title, and interest in and to said premises; and it further appearing that the plaintiff is not entitled to have said deed set aside and canceled — it is by the court ordered, adjudged, and decreed that the plaintiff take nothing by his said suit, and that the defendants, Maude Eva Thompson and her husband, T. M. Thompson, go hence without day.”

It is assigned that the judgment of the court denying to the appellant a recovery of the title to a one-twelfth undivided interest in the land in controversy and a decree for partition is, not only contrary to the law and evidence, but that said judgment is wholly without evidence to support it. We have carefully read and re-read all the evidence as it appears in the statement of facts, and, ■while it is conflicting in material particulars, we regard it sufficient to support the judgment of the court. Whether appellant knew and understood that the instrument presented to him by William McKee, administrator of the estate of Samuel G. Smith, deceased, and which was signed and duly acknowledged by him was a quitclaim deed to such interest as he had in the land and premises in controversy as an heir of his deceased mother, was a disputed issue of fact, and, that issue having been resolved against him by the trial court, upon evidence authorizing such action, the judgment on appeal, under the well-established rule of practice in this state, should not be disturbed. The case, as stated above, was tried by the court without the intervention of a jury, and, since no findings of fact were requested or filed, this court must assume that all the. issues of fact-arising under the pleadings and evidence were determined in favor of the party in whose favor the judgment was rendered. The property in controversy was the community property of Samuel G. Smith and Mary Smith, father and mother of the appellant. Mrs. Mary Smith died in 1879, or 1880 intestate, and there has been no administration of her estate. After the death of Mrs. Smith, Samuel G. Smith resided on the property until his death, which occurred in 1912. He left a will, which was duly probated, by which he devised to appellee Mrs. Maude Eva Thompson the premises involved in this suit, which had been for many years the homestead of the family. Mrs. Thompson lived with her father in this home until his death, and the appellant lived there as one of the family until he was about 27 years old. He was 43 at the time of the trial of this case. He inherited from his mother a one-twelfth interest in the property. He made a quitclaim deed to appellee Mrs. Thompson for said interest on the 21st day of May, 1912, which was delivered to appellees and filed for record May 22, 1912. In this connection appellant testified:

“At the time I executed the quitclaim deed inquired about, Mr. McKee, administrator of my father’s estate, called on me at Schoeilkopf Saddlery Company, where X was at work, and, after gaining permission to see me but for two or three minutes, approached and shook hands with me, and he says, ‘Ben, I am ready to settle your father’s estate, and all that remains now to be done is for you to sign the quitclaim deed and I will settle it up right away,’ and I says, ‘This is simply a release from myself to my father’s interest,’ and he says, ‘Yes,’ and I said, T will sign it.’ X did not have time to look it over, so I took Mr. McKee’s word and believed what he said to be true and it only pertained to my father’s interest in said estate, and I did not want to put them to any cost or put them off because they wanted to settle it right away, and so I took his word for it and signed it.”

I-Ie further testified that it was about the 7th, or 8th, day of the following! July before he found out what the deed was; that, as soon as he found out that the deed was not as represented, he went to Mr. McKee’s office and requested him to straighten the matter up, and Mr. McKee said, “The quitclaim was to all of it,” and that he (appellant) replied that he did not mean it that way, and that McKee then said, “Well Ben, I don’t know, ■ but think Maude (the appellee) ought to pay • you for your share, and I might have done wrong in getting you to sign it.” The appellant further testified that at the time he signed the quitclaim deed he had known Mr. McKee a long time and believed what he said and relied upon the truthfulness of his statements, otherwise he never would have signed the deed; that no one ever paid him anything as a consideration for executing the deed; and that at the time he believed the instrument he signed pertained to his father’s estate and was something that was necessary to be signed in order that said estate might be closed, as was explained to him by Mr. McKee. He further said that he could not say that he knew the instrument was a quitclaim-deed at the time he signed it; that he did not open it up; just opened it enough to sigp it; that he signed for the purpose of releasing his interest in his father’s estate; that he did not tell McKee and Mr. Middleton, who took his acknowledgment to the deed, that he wanted his sister Maude to have the property; that he could read and write; that he would not have signed the deed had he known that it might be construed to convey his interest in his mother’s estate. On the other hand, William McKee, who secured appellant’s signature to the quitclaim deed, and who was executor or administrator of the estate of Samuel G. Smith, deceased, testified in effect that he had known the appellant since the latter was a little boy; that he (witness) was 71 years of age; that he had acted as administrator of the estate of Samuel G. Smith; that, when the will and papers of Samuel G. Smith were turned over to him he found an unsigned deed among them in which the name of the appellant appeared as grantor and the said Samuel G. Smith as grantee, and appellant’s interest in the land and premises in controversy the subject of the transfer; that this unsigned deed was in the handwriting of the said Samuel G. Smith, deceased; that he took this deed to Mr. 0. 0. Middleton, who was a notary public, and told him he wanted to get it fixed up; that all the children, except appellant, had signed a quitclaim deed to their father for their interest in the property; that when the unsigned deed was prepared appellant was not of age, and for that reason the deed was put with the will; that he knew the circumstances in regard to it; that the name of Samuel G. Smith, where it appeared in the deed, was changed to “Maude Thompson” (the appellee), and the date, of the deed was also changed to the 21st day of May, 1912; that in company with Mr. Middleton, the notary public, he went to Schoellkopf’s place of business and asked permission to see appellant, and the permission was granted; that he went to where appellant was • and explained to him “the nature of the deed and told him all the other children had signed a quitclaim deed to their father for the land, and that the deed he had was in his father’s writing; that the title was perfect except for Ms quitclaim deed; that he told appellant the will said Maude should have the property; and that appellant replied: ‘Maude ought to have the property. There is no objection to signing the deed.’ ” This witness further said that the appellant signed the quitclaim deed cheerfully and deliberately right in the presence of Mr. 'Middleton; that he walked over to a table or work bench and signed the deed and came back, and it did not take more than' a few minutes; that Mr. Schoellkopf informed the witness that the men worked by the day, indicating that he should not occupy much of appellant’s time. Continuing, this witness said:

“Possibly a month or so Ben (appellant) came to see me. He had been to see me two’or three times previous, and he was drinking some,'- and I says, T just carried this out as your father’s wish, and it was your father’s wish by the deed that Maude (appellee) should get the property, and every one of the children acquiesced and said they were glad to see that Maude got the property; that Maude had stayed with their father all his life and made his home for him and ought to have the property.’ That appellant came to see witness after this. That he talked and rambled. He called me up by phone, and he was not himself, and I said, ‘Ben, I can’t talk to you.’ Mr. Middleton made the erasures in the quitclaim deed' after I explained the circumstances, and I never told Ben I thought I had made a mistake, and there was no conversation about that. It was put up to him as squarely as it could be.”

The witness further said that neither Mr. nor Mrs. Thompson asked him to get the quitclaim deed signed by appellant; that appellant was of age after the deed was prepared and before his father’s death; that witness did not consult appellees at all about getting the quitclaim deed from appellant; that he wanted to get the estate wound up as quickly as possible; that he sent the deed up to the courthouse by the appellee Thompson to be filed for record; that he paid the notary’s fee for taking the acknowledgment, the fee for recording the deed, and charged the items as expenses of administration. On cross-examination, this witness repeated more than once that he fully explained the deed to appellant and that appellant understood it. Being asked why he thought a quitclaim deed whs necessary from appellant to his father’s interest in the estate, he said:

“To get the title perfected so the estate would go to Maude. I wanted to get the father’s interest perfect; that was all I was working for.”

In this connection, he further said:

“I fully explained that deed to Ben, and Ben understood it, and I was not getting a quitclaim from Ben to his father’s estate, but I was getting the title perfected, so I could turn it over. I had no interest in the matter myself.”

O. C. Middleton testified that he took appellant’s acknowledgment to the deed. Being asked whether Mr. McKee said anything about the deed being a release to appellant’s “interest in his father’s interest or to his mother’s interest,” the witness first said, “No, I do not know whether he mentioned that or not.” He further on in his testimony said, “He didn’t say anything about its relating to his mother’s interest in the estate,” but that appellant had an opportunity to read the deed, and said “he wanted his sister to have the property.” The appellant T. M. Thompson testified that he had put a house on the lot at an expense of $600; that he “never asked Mr. McKee to get the deed from Ben to tMs property.” The appellee Mrs. Thompson testified, among other things:

“I did not ask Mr. McKee to get Ben to make any deed to this property. All I knew was the other children did execute deeds to their interest. After Ben signed this deed, he said to me, T think you deserve the property; you are the girl that stayed at home, and I see no reason why you shouldn’t have it.’ I think that Ben all the time intended for me to have the •property until something came up. I don’t know what it was.”

Having been asked if she wanted to keep Ben’s interest in his mother’s estate without paying him for it, she answered, “I would not take anything except what’s right.”

There is no allegation that the quitclaim in question was executed by mutual mistake, and under the evidence in the ease the trial court was justified in concluding, as it did, that the appellant intentionally, with full knowledge of the nature, character, and consequences of his act, and without any mistake of facts, executed and delivered it, intending that the interest he inherited from his mother in the property therein described should pass to his sister, Mrs. Thompson. It is only when the evidence is so lacking in probative force that it falls short of being any evidence that the issue sought to be established thereby may be said to be one of law and not one of fact. This rule is so well established that we need not cite authorities in support of it. Clearly this court would not be warranted in saying as a matter of law that William McKee misrepresented to appellant the character of the quitclaim deed he signed, the interest it transferred to appellee, and that appellant, at the time he executed it, did not know its real nature and the consequences of its execution. These were, under the evidence, issues of fact, and the trial court’s determination of them are conclusive upon this court.

The contention of appellant that the deed executed by him is not supported by any consideration cannot be sustained. The deed expressed a consideration of love and affection, and, the evidence being sufficient to justify the court’s conclusion that appellant understood its nature and the consequences of its execution and delivery, there is no question of the sufficiency of the consideration. The delivery of the deed to McKee, his delivery of it to appellees, who had it placed of record, was a sufficient delivery to and acceptance of it by appellees to complete the transaction and pass appellant’s interest in the land to them.

The judgment is affirmed.
      @=>For other cases see' same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    HOUSTON E. & W. T. RY. CO. v. SNOW.
    (No. 306.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1918.
    Rehearing Denied March 6, 1918.)
    1. Appeal and Error <§=>1004(1) — Ejecting Passengers — Questions por Juey — Damages.
    Where the carrier’s liability for wrongful ejection of a passenger is established, the amount of damages found by the jury will not be disturbed unless excessive or indicative of passion or prejudice.
    2. Carriers @=>382(7) — Ejection op Passenger-Excessive Damages.
    Where conductor, on the ground that his ticket had expired, ejected an aged man, whose ticket was valid, at a point six miles from the station on a dark night, in a driving rain, and he suffered mental anguish, fear, and was threatened with pneumonia, though not confined, verdict of $2,000 was excessive, and was reduced to $1,000.
    Appeal from District Court, Liberty County ; J. Llewellyn, Judge.
    Action by Jesse Snow against the Houston East & West Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on ¡condition that remittitur be filed.
    Remittitur was filed, and the judgment, as modified, affirmed.
    McMeans, Garrison & Pollard, of Houston, for appellant. E. B. Pickett, Jr., of Liberty, for appellee.
   HIGHTOWER, C. J.

This suit was instituted by the appellee, who was plaintiff below, in the district court of Liberty county, against appellant, Houston East & West Texas Railway Company, to recover damages against said company in the sum of $2,000. Appellee alleged substantially that on the 26th day of March,' 1917, he purchased a ticket over the line of appellant railway company from Houston, Tex., to Cleveland, Tex., for which he paid the sum of $1.30; that said ticket was purchased for the morning train of March 26th, which left Houston at 7:30 o’clock a. m., hut that appellee did not leave Houston on this train, having missed the same, and remained over for the train that left Houston at 9 o’clock p. m. of the same day; that the agent of the defendant company at Houston informed appellee that the ticket was good for the evening train; that it was honored at the gate, and that he boarded the passenger train of appellant which left Houston at 9 o’clock p. m. on March 26, 1917; that about four or five miles from the Central station at Houston axipel-lant’s conductor refused to honor appellee’s ticket, stating to appellee that his' ticket was out of date, and that the ticket showed to have been purchased on March 25th in place of March 26th; that appellee protested, stating that he had purchased the ticket on March 26th, and refused to get off the train; that at some distance from the Central station, between five and six miles, the conductor stopped the train and forced and compelled appellee to get off; that the night was dark, the wind was blowing considerably, and that it was thundering and lightning and raining; that it was about 9 o’clock at night, and at the time appellee was ejected from said train it was dark and stormy, windy, lightning and thundering, the' rain having commenced to fall before appellee was ejected from the train, and that it got worse before he was ejected; that appellee was exposed to the cold wind, threatening weather, and that he was ejected at a place where there were no houses or other means of shelter, and was compelled to walk to his son’s house, a distance of about six miles; that appellee was an old man about 63 years of age, and that by reason of having to walk back from the place where he was ejected he became very much frightened, fearing that he would be run over by a train, or in all probability would be attacked by negroes or Mexicans; that he was a country man, not acquainted with city life, and was very much excited when put off under the circumstances mentioned; that he suffered great inconvenience, worry, fatigue, and mental anguish in consequence of said wrongful ejection.

Appellant answered by general demurrer and general denial. The case was tried with a jury, and on the trial appellant admitted that its conductor wrongfully ejected appellee from its train, and that the only issue to be submitted for the jury’s consideration was the amount of damages to which appellee was entitled and this issue alone was submitted for the jury’s consideration, and the jury returned a verdict in favor of appellee for $2,000, the full amount sued for.

Appellant’s motion for new trial was filed and overruled, and the action of the court in that regard was duly excepted to.

There are two assignments of error found in appellant’s brief. The first is that the verdict in favor of appellee for $2,000 is excessive, and without support in the evidence, and shows that the jury was actuated either by malice against appellant or prejudice in favor of appellee, or that the same was rendered without due consideration, and without regard to the evidence introduced upon the trial, and that the amount so "awarded is so manifestly unjust as to warrant the belief that said jury was actuated either by prejudice in favor of appellee or malice against appellant, or that the same was rendered purely for punishment by reason of the failure of appellant to comply with its contract of carriage, and was not rendered upon the evidence as for injuries that appellee was shown to have sustained.

We have very carefully examined the record before us in connection with this assignment, and have concluded that the verdict of the jury is excessive, and that this assignment should be sustained.

The facts pertinent in this connection may be substantially stated as follows: Appellee was on a visit to his son, who lived in the city of Houston, and on the morning of the 26th of March, 1917, appellee went to appellant’s ticket office in Houston, and purchased a ticket to Cleveland, Tex., paying the proper price therefor, with the intention of boarding appellant’s train due to leave Houston early that morning, but for some reason appellee was left by this train, and therefore remained over until appellant’s evening train was due to leave Houston for Cleveland, about nine o’clock that 'night. Just before appellant’s train was due to leave that night, appellee, accompanied by his son, came to the station of appellant, and presented to the gateman at the station his ticket, which he had purchased in the morning, and asked the gate-man if the ticket was good for the night train, to which the gateman replied, “it is as good as any I can sell you,” and thereupon appellee was passed through the gate and boarded appellant’s train. After the train had proceeded on its journey and had reached a distance of about two miles from the station, appellant’s conductor came in the coach where appellee was sitting, and on approaching appellee for his ticket appellee handed the conductor the ticket which he had purchased in the morning of that day, which ticket the conductor refused to accept, stating to appellee that the ticket was no good, for the reason that the ticket was purchased the day before, on March 25th, and that he, the conductor, could not honor the ticket under the rules of the company, and that appellee would have to pay a cash fare of $1.30 to Cleveland. Appellee thereupon informed the conductor that he had purchased the ticket on that morning, and that he declined to pay the conductor cash fare to Cleveland, and that, in fact, he had no money with which to pay his fare, and thereupon the conductor told appellee that he would have to get off the train, and caused the train to be stopped, and took appellee by the arm and put him off the train. The ticket in question was, in fact, sold to appellee on the morning of March 26th, but the figure “6” on the ticket was dim, and looked very much like the figure “5,” and this misled appellant’s conductor, and was the cause of the ejection of appel-lee. At the time appellee was ejected from the train it was dark, and was raining, and the ground was wet and slippery, and the wind was blowing, according to appellee’s statement, very hard. Appellee was unacquainted in the vicinity where he was ejected from the train, and the only lights that he could see at that time were the lights known as the tower lights, somewhere near the point where appellant’s line is crossed by the line of the International & Great Northern Railway, and he stated that he could not see the electric lights in the city of Houston at all from the point where he was ejected. There was a street car line within seven or eight blocks of where appellee was ejected, but ap-pellee did not know how to reach this line at the time, and stated that he was compelled to grope his way in the dark up appellant’s track back to the city of Houston through the wind and rain, and that in doing so he had to pick his way over switch tracks and cross tracks, and that he was very apprehensive that he would be run over or injured by a train, and that he suffered a great deal of mental anguish, and also from the rain and cold, and that when he reached his son’s house, about 11 o’clock that night, he was wet and cold, and very tired. He further stated that he took a severe cold from the exposure he had endured, and -that he was threatened with pneumonia, but there is no testimony that he was made sick or confined to his bed. and no allegations in his petition tp that effect, nor any contention that he sustained any loss of time in consequence of his unlawful ejection. Appellee’s son also testified as a witness in the case, and substantially corroborated appellee as to the conditions of the weather prevailing that night, and further stated that his father got back to his house about 11 o’clock that night, and that when he got there he was wet and cold, and was perfectly exhausted. Appellee, at the tune of the transaction in question, was about 60 years of age, and was a country man, who lived at Romaro, in Liberty county, and was making his way back home at the time of his rejection.

We think that the above states substantially all the material facts necessary to be considered in connection with this assignment, and the question is: Are these facts sufficient to warrant the verdict of the jury in appellee’s favor for $2,000, which was the full amount sued for?

In support of its contention that the verdict is excessive, appellant cites Howe, Rec., v. Gibson, 22 S. W. 826; Howe, Rec., v. Oliver, 22 S. W. 828; Railway Co. v. Marshall, 140 S. W. 508; Railway Co. v. Gibson, 79 S. W. 354; Railway Co. v. Green, 154 S. W. 278; Railway Co. v. Sain, 24 S. W. 958.

Appellee, in support of his contention that the verdict is not excessive, cites Railway Co. v. Wharton, 145 S. W. 282; Railway Co. v. Raymond, 135 Ky. 738, 123 S. W. 281, 27 L. R. A. (N. S.) 176; Railway Co. v. Dubose, 171 S. W. 1090; Smith v. Railway Co., 192 Mo. App. 210, 180 S. W. 1036; Railway Co. v. Wallace, 152 S. W. 873; Railway Co. v. Carroll, 151 S. W. 1116; Railway Co. v. Dodd, 167 S. W. 238; Railway Co. v. Love, 169 S. W. 922; Railway Co. v. Becker & Sale, 171 S. W. 1024; Railway Co. v. Rose, 172 S. W. 756; Railway Co. v. Miller, 191 S. W. 374.

We have carefully read the above authorities, as cited by each side, and have con-eluded, after reading them all, that none of them would justify this court in upholding the verdict of the jury in this case in favor of appellee for the sum of $2,000. It is generally held that the law affords no accurate test by which damages are to be measured in a case of this character, and the rule is that the damages to be awarded a ’passenger, where liability is established on the part of the carrier, in cases of this character, is a question which is addressed to the discretion and judgment of a fair and impartial jury upon all the facts and circumstances in the case, and that a jury’s verdict, in this character of cases, awarding damages, will not ordinarily be disturbed unless it is made to appear that the amount found in favor of the plaintiff is so excessive as to indicate passion or prejudice, either in favor of plaintiff or against the defendant, or some other improper motive or consideration, which actuated the jury, and such has been the holding of the courts of this state; but our courts have uniformly held also that, even in the absence of affirmative facts showing prejudice or bias, or other improper motive, that if the amount awarded the plaintiff in cases of this character seems to be so excessive and out of proportion to the injury sustained, the appellate courts will review such verdicts, and cause a remittitur by the appellee, or reverse the judgment and remand the case.

It is also true that each case of this character must be decided upon its own particular facts, and it is seldom, perhaps, that any two cases of this character will be found just alike in the facts, but, after reviewing all the authorities cited by parties for each side, we believe that we are correct in saying that none of them, when the facts are considered upon which the judgments were based, can be considered authority for upholding the verdict of the jury in this case for the sum óf $2,000 in favor of appellee, and we believe it to be the duty of this court in this instance to sustain appellant’s assignment that this verdict is excessive, and we think that a verdict for the sum of $1,000 would have been the very largest amount to which the appellee was entitled in this case, and we have decided to reverse and remand this case, unless appellee will enter a remit-titur in this court to the extent of $1,000 within the next 15 days, which, if done, the judgment in favor of appellee will be affirmed for the sum of $1,000, but otherwise the cause will be reversed and remanded; and it is so ordered.

On Entry of Remittitur.

At a former day of the term, to wit, on the 1st day of February, 1918, the judgment of the trial court in this cause in favor of appellee for the sum of $2,000 was held by this court to be excessive to the extent of $1,000, and it was ordered for that reason that the judgment of the trial court be reversed and remanded unless appellee would file a remittitur in this court to the extent of $1,000 within 15 days from the date the original opinion of this court was filed, and that, if appellee should file such remittitur, the judgment of the trial court would be affirmed in favor of appellee for $1,000. Since the filing of this court’s original opinion appellee has filed in this court his offer to remit the sum of $1,000, as provided by the order of this court, and agrees that this court may enter judgment in appellee’s favor for the sum of $1,000, and affirm the judgment of the trial court to that extent.

It is therefore now ordered, adjudged, and decreed by this court that the judgment of the trial court be affirmed in favor of ap-pellee for the sum of and to the extent $1,000, and that he recover that sum as against appellant, Houston East & West Texas Railway Company, with interest thereon from this date at the rate of 6 per cent, until paid, together with all costs of this appeal.

The order reversing and remanding this cause as heretofore made is here now set aside, and the judgment of the trial court as here now modified is in all things affirmed.
      @c5>Foc other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes