author: FLY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. BRACHT.
    (No. 5393.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1915.
    Rehearing Denied Feb. 10, 1915.)
    1. Commerce (§ 61) — Interstate Shipments —Damages—Notice op Claim — Pleading— Verification.
    Rev. St. 1911, art. 5714, providing that no stipulation in any contract requiring notice of claim for damages as a condition precedent to the right to sue shall be valid unless the stipulation is reasonable and gives a period for notice of at least 90 days, etc., and that it shall be presumed that notice has been given unless want of notice is specially pleaded under oath, has no binding force with reference to contracts for the transportation of interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec. Dig. § 61.]
    2. Commerce (§ 8) — Interstate Shipments ' —Transportation—Damages—Notice op Claim.
    Since contracts for the transportation of interstate commerce are governed by the common law, and not by state statutes, it is permissible for the parties to contract for any reasonable notice of claim for damages as a condition precedent to .suit; the Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]) having set aside all state laws with reference to interstate shipments and placed them exclusively under the control of federal laws.
    [Ed. Note. — For other eases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.]
    3. Carriers (§ 63) — Transportation op Freight — Written and Oral Contract.
    Where an interstate shipment was made under an oral contract, and a written contract was not signed until the shipment had gone several miles on its journey, the oral contract would prevail, unless the shipper, with knowledge of its contents, agreed to the written contract, and this though the shipper knew he would be required to sign a bill of lading or contract after the train arrived at a certain place.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 210, 211; Dec. Dig. § 63.]
    4. Carriers (§ 49*) — Interstate Shipments —Oral Contract — Bill op Lading — Signing en Route.
    Where an interstate shipment was started under an oral contract, the shipper’s agent, who signed the bill of lading while the shipment was en route, was entitled to presume that there was no change in the verbal contract made by the receipt or bill of lading, and, he not having read it and having no knowledge of its contents when he signed it, it was unenforceable for want of mutuality and consideration.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129, 142-147; Dec. Dig. § 49.]
    5. Evidence (§ 533*) — Experts—Question op Fact.
    Where, in an action against a carrier for injury to vegetables, a witness qualified as an expert on the condition of shipments, his statement that the car had been roughly handled, based on the fact that when he opened the car he found most of the crates smashed and lying on the floor, etc., was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. § 533.]
    6. Carriers (§ 133*) — Damage to Freight-Sale — Evidence.
    In an action against a carrier for damages to a shipment, the broker who sold the goods was properly permitted to state the efforts he made to sell them in their damaged .state, and that he obtained for them the best price possible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 5S3-587, 606; Dec. Dig. § 133.]
    Appeal from Aransas County Court; Roy Jackson, Judge.
    Action by A. L. Bracht against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. Gordon Gibson, of Rockport, and Kle-berg & Stayton, of Corpus Christi, for appellant. E. A. Stevens and W. H. Baldwin, both of Rockport, for appellee.

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

   FLY, C. J.

This is a suit instituted by appellee to recover damages to a car of cucumbers shipped from Ingleside, Tex., to Chicago, Ill., which arose from a failure to transport the same with reasonable dispatch and a failure to keep the car properly iced, and also from rough handling of the car. The car of cucumbers, which contained 560 crates, was shipped on a verbal contract from Ingleside, Tex., to Chicago, Ill. The written contract, about which witnesses testified, and which was introduced in evidence by appellee, does not appear in the statement of facts, and, of course, this court has no knowledge of its contents.

The court sustained exceptions to the answer of appellant, which set up the clause in the written contract requiring notice of the damages within four months of accrual of the saíne as a condition precedent to a recovery, because the same was not verified as required by article 5714, Rev. Stats. That article has no binding force so far as interstate shipments are concerned.

The Supreme Court of the United States has held that the common law, and not state statutes, apply to interstate shipments, and that it is permissible to contract for any reasonable. notice as to damages to a shipment as a condition precedent to a suit for damages, and that the Carmack amendment set aside all state laws in regard to interstate shipments and placed them exclusively under the control of federal laws. Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Wells Fargo & Co. v. Neiman-Marcus Oo., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. Ed. 600; Railway v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Railway v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Railway v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697; Railway v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703; Railway v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901. These cases have been followed in this state. Railway v. Sparks, 162 S. W. 943; Railway v. Vasbinder, 172 S. W. 763, not yet officially published. It follows that article 5714, as to notice, cannot be applied to an interstate shipment, and the verification of the answer would be tested by the general statute as to verification. The answer was under that statute properly verified.

It does not necessarily follow, however, that a reversal should follow, for the facts showed beyond doubt that the shipment was made by virtue of an oral contract, and that the written contract was not signed until the shipment had proceeded several miles on its journey. Under such circumstances the oral contract would prevail unless the shipper with knowledge of its contents agreed to the written contract. Railway v. Meadors, 104 Tex. 469, 140 S. W. 427; Railway v. Sparks, 162 S. W. 943.

It is true that appellee knew that he would be required to sign a bill of lading or contract after the train arrived at a certain place, but that would not, as a matter of law, destroy the oral contract. As said in the case of Easton v. Dudley, 78 Tex. 236, 14 S. W. 583, and quoted and followed in Railway v. Timon, 45 Tex. Civ. App. 47, 99 S. W. 418:

“If the agent can contract to receive freight, he_ can contract as to the time when he will receive and as to every other undertaking necessary to that end.”

It has been held that in such cases the oral contract would not be merged into the written contract which was afterwards signed. Railway v. Sparks, herein cited; Bostwick v. Railroad, 45 N. Y. 712. In the New York case the verbal contract had been acted on, just as it had in this case, and it was held that:

“After the verbal agreement had been consummated and rights had accrued under it, the mere receipt of the bill of lading, inadvertently omitting to examine the printed conditions, was not sufficient to conclude the plaintiff from showing what the actual agreement was under which the goods had been shipped.”

That was approved in Guillaume v. Transportation Co., 100 N. Y. 491, 3 N. E. 489, and Swift v. Pacific Mail Co., 106 N. Y. 219, 12 N. E. 583.

The agent of- appellee, who signed the bill of lading while the shipment was en route, had the right to presume that there was no change in the verbal contract made by the receipt or bill of lading. He did not read it, knew nothing of its contents, and it did not form the contract between the parties. The contract lacked mutuality and was without consideration. Railway v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565.

The witness Cohen qualified as an expert on the condition of shipments of vegetables, and he was fitted to testify that the car had been roughly handled. He stated that he found most of the crates smashed and lying on the floor of the car, and any man of average intelligence would know that nothing but rough handling could have produced such results. There was no question of law in the answer of the witness, and it involved nothing but' a question of fact. The fourth and fifth assignments of error are overruled.

There is no merit in the sixth assignment of error. There was no error in permitting Cohen, who handled the cucumbers in Chicago, to swear as to what efforts he made to sell the cucumbers in their damaged state, and that he obtained the best price possible for them. He told how he sold them and was in a position to swear that he got all he could for them. He testified that he knew the market price of cucumbers in Chicago at that time; that the cucumbers were badly damaged; that if in good condition they would have been worth $2 a crate, or, in the aggregate, $1,120; and that the best possible price he could get for them was $393.50. Garlington v. Railway, 34 Tex. Civ. App. 274, 78 S. W. 368.

The judgment is affirmed.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    RODGERS v. TEXAS & P. RY. CO.
    (No. 7215.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 26, 1914.
    Rehearing Denied Feb. 6, 1915.)
    1. Appeal and Ebbob (§ 1003) — Review — Judgment Based on Yebdict — Grounds EOB REVERSAL.
    The court on appeal should not reverse a judgment based on the verdict of a jury, unless it is clearly against the weight of the evidence or the trial embodied errors which cannot be said not to have influenced the finding.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dee. Dig. § 1003.]
    2. Trial (§ 244)—Instructions—Repetition . of Charge—Error.
    In an action against a railroad for injuries to cattle in transit, where the substance of a requested special charge was embodied in the main charge, the special charge being that only injuries caused by negligence of defendant and producing greater injury than would necessarily have resulted from the mere fact of transit could’ serve as a basis for recovery, to give such special charge was improper as unduly emphasizing the point.
    [Ed. Note. — Por other cases, see Trial, Oent. Dig. §§'577-581-; Dec. Dig. § 244.]
    3. Tkial (§ 244) — Instructions—Repetition or Charge — Error.
    In an action against a railroad for injuries to cattle in transit, it was error for the court to give a requested charge that there could be no recovery for injuries resulting from horning and hooking each other by the cattle, unless such hooking- was caused by negligence of defendant, where the point was covered by the main charge, since the repetition unduly emphasized the point.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    4. Carriers (§ 228) — Carriage or Live Stock — Delayt-Deli very in Injured Condition-Burden to Excuse.
    Where cattle were delivered in good condition to a railroad for transit, if they reached their destination after delay in an injured condition, the burden is on the railroad to excuse the delay to escape liability for the damage.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    5. Carriers (§ 230) — Injury to Cattle — Instructions.
    In an action against a railroad for injuries to cattle in transit, a charge that if the train was negligently delayed after the cattle were delivered to the road at Pt. Worth for shipment to Terrell, or if the train was negligently handled, resulting in skinning and bruising the cattle, or if, by defendant’s negligent delay in unloading at Terrell, the cattle were led to fight in the cars to their injury, the defendant is liable, was misleading as tending to impress the jury with the idea that it could not award damages for injuries caused by negligence of the road between the delivery of the cattle to it and the departure of its train from Pt. -Worth, and it constitutes error.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 961, 962,- Dec. Dig. § 230.]
    6. Trial (§ 251) — Instructions—Relevancy to Issues — Error.
    In an action against a railroad for injuries to cattle in transit, where the court charged that if ordinary cattle might be led to fight in cars unusually delayed in unloading, and that, if such delay and consequent injury to the stock occurred, defendant was liable, the habits of the cattle not being in issue under the pleadings, the charge was improper.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    7. Carriers (§ 229) — Injuries to Stock in Transit — Damages.
    In an action against a railroad for injuries to cattle in transit, the measure of damages is not the difference between their market value at destination in the condition in which they were delivered and the condition in which the'y should have been delivered, but the difference between their market value when delivered to defendant at starting point of transit and their market value at destination at the time they should have arrived and in the condition in which they should have been.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    8. Appeal and Error (§ 1068) — Review-Erroneous Charge Not Considered by Jury.
    An erroneous charge on the measure of-damages, where the jury found no damage, was not reversible error.
    ■ [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    9. Trial (§ 251) — Instructions—Point Not at Issue — Error.
    In an action against a railroad for injuries to cattle in transit, where the uncontradicted evidence shows that the stock was delivered to defendant in good condition, it is error to charge that the jury can find no damage for injuries inflicted before delivery to the defendant; no such contention being at issue.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    10. Carriers (§ 228) — Injuries to Stock-Evidence.
    In an action against a railroad for injuries to cattle in transit from Pt. Worth to Terrell, where the evidence is uncontradicted that cattle were delivered to defendant for transport at Pt. Worth in good condition, it is error to admit testimony over plaintiff’s objection that the cattle had been previously shipped from Uvalde to Ft. Worth.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from Kaufman County Court; James A. -Cooley, Judge.
    Action by R. S. Rodgers against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.
    Reversed.
    Wynne & Wynne, of Kaufman, for appellant. W. Dorsey Brown, of Kaufman, for appellee.

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

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

   RAINEY, C. J.

Appellant, plaintiff below, brought this suit against appellee, defendant below, to recover damages to a shipment of cattle, alleged to have been injured in shipping from Pt. Worth, Tex., to Terrell, Tex., over appellee’s road, by reason of negligent delay and improper handling on the part of appellee. A trial resulted in a verdict and judgment for the appellee, from which appellant prosecutes this appeal.

The evidence was uncontradicted as to the cattle being delivered for shipment to appellee, but was sharply contested on the issue of whether or not said cattle were injured in the transportation of same. The shipment was not accompanied by the appellant nor his agent; and it is important for us to determine, if we can, whether or not the errors assigned are immaterial or are such as should cause a reversal of the judgment. The court should not reverse a judgment passed upon by the jury, unless it is clearly wrong, or there were errors in the trial of the case, which we cannot say did not influence the finding of the jury. The errors assigned relate to the main charge, to special charges requested and given, and those refused, and to the admission of testimony. We are unable to say that some of the errors pointed out did not influence the verdict; therefore we feel it our duty to reverse the judgment and remand the- case for another trial. The reasons for so doing are:

1. The court erred in giving the following special charge requested by appellee, viz.:

“You are further instructed in this case that the plaintiff, before he can recover, must show that said alleged injuries, if any, were sustained by reason of the negligence of the defendant, its agents and employes; and if you find from the evidence that such injuries, if any, were slight, and only such as would accrue by reason of the fact of shipping, then in such event you will find for the defendant.”

The substance of this charge is embraced in the court’s main charge, and its repetition as a requested charge placed undue prominence on that issue, which was improper.

2. The court erred in giving appellee’s requested charge, viz.:

“You are instructed in this case that, if said cattle were injured at all by horning or hooking each other, then in such event, as to such injuries, you will find for the defendant, unless it is shown, by a preponderance of the testimony, that such hooking was caused by the negligence of the defendant, its servants and employes.”

This charge was covered by the main charge, and it was improper to emphasize this issue. The burden of proof through the whole case was on plaintiff to show negligence and injury to the cattle, but it was improper to pick out particular portions of the evidence and make them prominent. If the cattle were delivered in good condition to the railroad company, and they reached Terrell injured, and delay in transportation was shown on the part of the railroad, then it devolved upon the railroad company to show an excuse therefor.

3. The fourth paragraph of the court’s charge is complained of as error. It reads as follows:

“Now, if you believe from the evidence that after the cattle were delivered to the defendant at Ft. Worth, Tex., for shipment to Terrell, Tex., that the train in which said cattle were shipped was delayed, and that such delay, if any, was negligence on the part of the defendant, or if you believe from the evidence that the train in which the cattle were being transported was roughly handled, causing the cars to be rammed and bumped together, jerking the cattle down in the cars and against the sides and ends of the cars, injuring, skinning, and bruising said cattle, and the manner in which the cattle were handled was negligence on the part of the defendant, and if you further believe from the evidence that the negligence, if any, in the handling of said cattle, if they were roughly handled, either or both, resulted in injury to the cattle, then the plaintiff would be entitled to recover his damages, if any, therefor; and if you further find from the evidence that the cars in which the shipment of cattle were transported — that after it reached its destination that the shipment of cattle was left standing before unloading for an unreasonable length of time, and the cattle injured themselves by fighting or moving about while the car was so standing before unloading, it devolves upon plaintiff to show, by a preponderance of the evidence, that the car of cattle was standing for an unusual length of time before unloading, and that the cars were left standing without being unloaded, by reason of the negligence of the defendant, or its agents, and that the cattle would not have been so injured, if they were, by fighting and moving about, if they did, but for such negligence, if any, and that the acts of the cattle are such as are the ordinary acts and habits of cattle under the same circumstances, and that the defendant or its agents knew of such acts or habits, if any, or could have known by ordinary care and diligence, plaintiff would be entitled to recover for such injuries, if any, occasioned by such acts, if any there were on the part of said cattle, and, if you fail to so find in this case, the plaintiff cannot recover for injuries received by the cattle in fighting and moving around, if any injuries were occasioned thereby.”

This charge is not as explicit as it should have been, in that it is so framed that the jury may have considered they could not allow damages for negligence, if any, between the delivery of the' cattle to appellee and the departure of the train from Ft. Worth. The appellant pleaded delay, and there was evidence tending to show delay at Ft. Worth. The appellee presented a special charge covering this defect, which special charge the court refused to give. The charge also required the appellant to show, in effect, that the acts and habits of the cattle, under the circumstances, were such as ordinary cattle, and that the defendant knew of such acts or habits, in order that appellant might recover for injuries occasioned by the cattle fighting and moving around before unloading. There was no issue raised by the pleadings of the appellant, as to the habits of the cattle, and it was improper to so charge.

4. The court erred in his charge on the measure of damages, viz.:

“If you find for the plaintiff under the evidence and charge herein given you, then you are instructed that the measure of damage is the difference, if any, in the market value of the cattle at Terrell, Tex., when delivered to the plaintiff in their then condition, and the market value of the cattle at Terrell, Tex., at said time, had they been delivered to the plaintiff without injury, if any, provided such delay, if any, was occasioned by the negligence of the defendant, or such injury, if any, by the failure of the defendant to use ordinary care in the handling of said cattle.”

The measure of damage is the difference in the market value of said cattle in their condition when delivered to appellee at Ft. Worth, and their market value at the time they should have been delivered at Terrell, in the condition they should have been in. As the jury found there was no damages, this charge would not reverse the judgment, but we thought best, in view of another trial, to call attention to it.

5. The court erred in the sixth paragraph of its charge, in telling the jury, in effect, that they could find no damages for injuries received by said cattle before delivered to appellee at Ft. Worth. There was no proof of any injury to the cattle before being delivered to appellee. The uncontradieted. evidence shows the cattle to have been delivered to appellee in good condition, and hence no such issue was raised.

6. Several assignments relate to the admission of testimony by several witnesses in regard to the cattle having been first shipped from Uvalde to Ft. Worth. This testimony was immaterial, and the objection thereto should have been sustained. The evidence showing without contradiction that the cattle were delivered to the railroad company in good condition at Ft. Worth, it was immaterial from what point the cattle were shipped to Ft. Worth, where they were delivered to appellee.

The judgment is reversed, and the cause remanded.


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HOOD.
    (No. 7250.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 16, 1915.)
    1. Words and Phrases — “Volunteer.”.
    A “volunteer” is one who intrudes himself into a matter which does not concern him, or one who pays the debt of another without request, when he is not legally or morally bound to do so, and when he has no interest to protect in making such payment (citing Words and Phrases, Second Series, Volunteer).
    2. Railroads (§ 17) — Agents—Payments— Reimbursement — Volunteer.
    Where plaintiff, at the time of his employment as local agent for the defendant railroad company, was postmaster, and afterwards became agent for an express company, and where, without authority from defendant, he abandoned the building previously used by defendant for the transaction of its business and rented another building which he deemed more suitable, he was a mere volunteer in paying the rental thereof and not entitled to recover from defendant the amount of such rental.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. § 17.]
    3. Appeal and Error (§ 549) — Presentation for Review — Bill oe Exceptions.
    Where the record did not contain a bill of exceptions, as required by the amendments to the Practice Act, enacted by Acts 33d Leg. c. 59, presenting the trial court’s refusal to submit the issue of res judicata, such refusal could not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. § 549.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by C. I-Iood against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for xilaintifC, defendant appeals.
    Reversed and rendered.
    Chas. C. I-Iuff, of Dallas, and R. B. Howell, of Winnesboro, for appellant.

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

   RASBURY, J.

Appellee sued appellant in the court below for $420, alleged to be the amount paid by appellee on behalf of appellant for depot rentals, etc., at the town of Newsome, Tex., covering a period of years during which appellee was acting as agent for appellant. Appellant denied liability and alleged such payments, if made, were voluntary on the part of appellee and unauthorized by appellant, and also interposed the plea of res judicata. There was a jury trial, resulting in verdict for appellee for $97, followed by like judgment, from which this appeal is taken.

The essential facts, stated in our language and deduced from the testimony contained in the meager statement in the record, are as follows: On March 1, 1909, appellant employed appellee to act as its agent in the town of Newsome, agreeing to pay appellee a salary and a commission on sale of tickets. Appellee remained in appellant’s service from March 1, 1909, until December 28, 1912. At the time of his employment by appellant, ap-pellee was postmaster at Newsome and became agent also for the American Express Company about 1 % years after his employment. by appellant. When appellee entered appellant’s employ, there was a small building owned by appellant on its right of way which had been used by its former agent for transacting appellant’s business. Appellee deemed said building unsuitable, improperly furnished, and too small for housing the valuable freight received at Newsome, and for that reason carried on the business at the same place he was then conducting the business of the United States post office, and where he subsequently carried on the business of the express company. It is for the rent of said building, and one subsequently occupied in a similar manner, that he sues. Appellant knew appellee was renting a building other than the one owned by it in which to transact its business, and that appellee was claiming that appellant should reimburse him for same, but appellant never at any time authorized appellee to rent a building in which to conduct its business, and at all times declined to pay the rentals.

Appellant asserts that upon the facts, as we have stated them, it appears without dispute that appellee was a volunteer, as relates to the payment of rentals, and that it follows, as matter of law, that he was not entitled to recover any portion thereof. A volunteer is said to be “one who intrudes himself into matters which do not concern him,” or “one who pays the debt of another without request, when he is not legally or morally bound to do so, and when he had no interest to protect in making such payment.” 40 Oyc. 222-224; Words and Phrases (N. S.) 1212; Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; Whiteselle v. Texas Loan Agency, 27 S. W. 309; Missouri, Kan. & Tex. Ry. Co. v. Moore, 169 S. W. 916. We agree with the contention of counsel for appellant. It seems clear that when appellee, upon his own initiative, moved appellant’s business into the building in which he was conducting the business of the post office, in order to perform his duties as appellant’s agent, without authority of appellant, and when appellant had a building in which it had formerly transacted its business, he “intruded” into a matter which did not “concern” him, since it was not his right to determine the suitableness or unsuitableness of appellant’s public facilities, and that, when he went further and paid the rental so incurred on behalf of appellant, he “paid the debt of another without request,” when he was not ‘‘legally or morally bound to do so, and when he had no interest to protect.” The reason assigned is, in our opinion, insufficient, since if there had been a loss of freight at Newsome because of insufficient depot facilities, or because there was none at all, appellee would have been liable neither to appellant nor to the public. Such loss would have been due to the negligence of appellant; and hence appellee, in that respect, had no interest to protect.

We cannot consider on this appeal the refusal of the court below to submit the issue of res judicata for the reason that the record does not contain a bill of exception presenting the refusal of the court to submit such issue as tendered by appellant’s special charge No. 1. It has been repeatedly held that it is necessary to present all refused special charges in such manner under the amendments to the Practice Acts as enacted by Keg. Sess. 33d Legislature, 113.

Entertaining the views herein expressed, it becomes our duty to reverse the judgment of the court below and enter judgment here for appellant, which is directed.


author: CARL, J.

text:
    SCHUMM v. ANDERSON et al.
    (No. 5394.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.
    On Rehearing, Feb. 10, 1915.)
    1. Appeal and Ebroe (§ 1012) — Review-Findings.
    Where an action at law for personal injuries was tried to the court, its findings cannot be disturbed, if supported by sufficient evidence, though they are against the preponderance of the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. § 1012.]
    2. Municipal Coepoeations (§ 819) — Excavation in Steeet — Actions poe Peesonal Injueies — Sufficiency of Evidence — Negligence.
    In an action for personal injuries received by one who fell into a trench in the street, evidence held sufficient to support a finding that the trench was not guarded at that point by barriers or lights.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dee. Dig. § 819.]
    On Rehearing.
    3. Municipal Coepoeations (§ 819) — Excavation- in Steeet — Actions foe Peesonal Injueies — Sufficiency of Evidence — Con-TEIBUTOEY NEGLIGENCE.
    In an action for personal injuries received by one who fell into a trench in a city street, evidence held to support a finding that the plaintiff was not intoxicated at the time.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dec. Dig. § 819.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Charley Anderson against Charles Schumm and another. Judgment for the plaintiff, and defendant Schumm appeals.
    Affirmed, and motion for rehearing overruled.
    Diedrich A. Meyer, of San Antonio, for appellant. T. H. Ridgeway, of San Antonio, for appellee.

      For other cares see same topic and section NUMBER in Dee.

   CARL, J.

Appellee, Charley Anderson, sued appellant, Chas. Schumm, and the city of San Antonio, for damages on account of personal injuries received by him from falling into an open ditch on Soledad street, near Travis street, in the city of San Antonio. Appellant was a contractor with the city in digging the ditch. It is alleged that the said contractor and the city were negligent in leaving the deep ditch open without being'fenced and properly guarded, by lights, and that, on account of such negligence, ap-pellee, Anderson, fell into said ditch and received serious and permanent personal injuries. The court, before whom the case was tried without a jury, gave judgment against appellant and the city of San Antonio in the sum of $750, and judgment in favor of the city over against Schumjn for the same amount. Schumm alone has appealed.

The first, third, fourth, and fifth assignments question the correctness of the judgment on the ground that appellee’s injuries were the result of his own negligence. It is claimed in these assignments that the “preponderance” of the evidence shows that plainüff’s injuries were sustained through his own negligence. In matters of this kind, where the evidence has been heard by a jury or by the court, this court is not permitted to inquire into whether there is a “preponderance” of the testimony one way or the other, but only whether there is sufficient evidence to support the finding of the jury of court.

Appellant offered rather strong testimony to the effect that appellee, Anderson, knew the ditch was open, talked to other men about it, and that proper lights were there to guard it; also that Anderson was drinking. We may even say that appellant made rather a strong case of carelessness and contributory negligence against Anderson. However, there was equally strong and cogent testimony on the other side. Appellee testified that he did not know the ditch was there at all that night; that his eyesight was not very good; and that there were no fences, barriers, or lights at that place, and it was dark, and he walked straight into the ditch without knowing that it was there. He says he knew there was a ditch on Travis street, but did not know they had been digging on Soledad street for a week. Miss Bertha Edwards testified that:

“There was absolutely no fence or barrier around that ditch. * * * No, sir; I did not see any red lights on that particular corner. I am not a good judge of distance, but the closest light was about the length of this room (courtroom) from there.”
E. H. Wagner said:
“I didn’t see any lights on the hole he fell in. * * * I didn’t see any fence or barriers on the side next to the car track.”
He said, on cross-examination:
“I noticed a light on the hole next to the one where the accident happened, and X made the remark: ‘It’s funny there was a light on every hole except the one he fell in.’ ”

Mr. A. W. Boazman said he was returning from the First Baptist Church to his place of business on Soledad street, and he noticed that there were no lights on some of the holes on Travis street, and he went to the corner to get a policeman to have him 'attend to the matter, and when he got back appellee had fallen into the hole. He said there were no lights on the hole appellee fell into. The nearest light he saw was 30 feet away. These were all disinterested witnesses who attended the trial in obedience to subpoenas. Mr. Boazman says Anderson impressed him as being perfectly sober.

The court found against appellant on the whole testimony, and found that appellee was not guilty of contributory negligence. And where there is as much evidence to sustain the findings of the court as there is in this case, even though this court were otherwise disposed to do, we have no authority to disturb those findings. These assignments are overruled.

In the second assignment it is asserted that the preponderance of the testimony shows that the plaintiff sustained his injuries through his own negligence, and that he vwas intoxicated, and deliberately and wantonly sat down next to the excavation and intentionally slid down into the same.

Dr. Q. B. Lea and others testified that appel-lee was not drunk, while some, who are probably well qualified to know when a man is drunk, said he was intoxicated. In this state of the evidence, the trial court’s finding is final. The assignment is overruled.

The judgment is in all things affirmed.

On Rehearing.

In the original opinion we stated that Dr. Lea had testified that appellee was not drunk, but the using of Dr. Lea’s name in that connection was an oversight and error. He did not so testify.

Those who testified, in substance, that ap-pellee was not drunk were appellee himself, J. T. O’Toole, Miss Edwards, and Boaz-man. O’Toole said:

“In my judgment, he was not drunk. He came in the saloon and got a glass of beer from me, and I asked him to take, another, and he said, ‘No,’ that he was going home. He didn’t seem to be drunk at that time.”

. And .on cross-examination this witness said:

“I am sure he was sober; I can tell when a man walks up to me whether he is drunk or sober.”
Miss Edwards said:
“He acted to me as if he was perfectly sober, but very much hurt.”
Mr. Boazman said:
“I took Charlie Anderson in the house. He impressed me as being perfectly sober; his face was right next to mine, and I did not smell anything.”

As opposed to these witnesses, Poe, Martinez, Edge, Dr. Lea, Hutzler, and a man by the name of Brady testified that appellee was' drunk. Brady says:

“I did not ask him any questions or speak to him; he may have been drinking some. A good many people around there said he was drinking and something was the matter with him.”
And on cross-examination said:
“ * * * He was a tottery, a little wobbly, looked like. He staggered and wobbled along a little bit when he crossed the ditch.”

The other witnesses mentioned said Anderson was drunk.

In this state of the evidence on that matter we would not disturb the finding of the trial court, who heard and saw the witnesses.

The evidence as to whether there were or were not lights at the place was equally conflicting, and, for the reason above, this court would not disturb the trial court’s finding.

The motion is overruled.


author: HIGGINS, J.

text:
    SNOVER v. JONES.
    (No. 386.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 21, 1915.
    Rehearing Denied Feb. 11, 1915.)
    1. Frauds, Statute of, (§ 158) — Parol Contract for Sale of Land — Part Performance-Evidence.
    To take a parol agreement for the sale of land out of the statute of frauds by part performance, its terms and conditions must be clearly established by full and satisfactory evidence.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. § 158.]
    2. Frauds, Statute of (§ 56) — Sale of Land —Distinguished from Interest in Profits.
    A parol contract that defendant should live on land of plaintiff, build a house, pay taxes, and that after the land had become valuable through the natural growth of the neighboring city of El Paso it should be sold, and the profits divided between the parties, was insufficient to give defendant an interest in the land itself.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. § 56.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Trespass to try title by Jacob Snover against Paul Jones. Judgment for defendant, and plaintiff appeals.
    Reversed, and judgment rendered for Snover.

      J. E. Woodson and O. R. Armstrong, both of El Paso, for appellant Wallace & Gardner, of El Paso, for appellee.

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

   HIGGINS, J.

Snover sued Jones in trespass to try title to recover two lots in city of El Paso. Defendant claimed title to an undivided one-half interest in the premises by virtue of a parol purchase, payment of consideration, entry into possession, accompanied by erection of valuable and permanent improvements thereon. The nature of his idea is indicated by the special issues submitted to the jury, as follows:

“(1) Did the plaintiff and the defendant, on or about the years 1899 or 1900, enter into an agreement by the terms of which plaintiff promised defendant to convey to him a one-half interest in the said two lots in consideration that the defendant would enter upon and improve said lots, and pay all taxes due or to become due thereon until such period of time had elapsed as would cause a substantial increase in the value of said lots by reason of the natural growth of the city of El Paso, or until such time as plaintiff and defendant should elect to divide said property?
“(2) Did the defendant enter upon said two lots and make permanent and valuable improvements thereon, and pay all the taxes then due, and that have since become due on said lots to the time of filing this suit, and did he do so under and by reason of said agreement?
“(3) Have the said two lots substantially increased in value by reason of the natural growth of the city of El Paso?”

Each of the issues were answered in the affirmative, and judgment was rendered thereon in Jones’ favor for the one-half interest claimed by him. The sufficiency of the evidence is questioned.

It appears that in 1899 or 1900 Snover purchased the lots in controversy, and Jones and wife went into possession thereof and built a small, cheap, two-room house thereon, in which they have since lived, paying all taxes due on the premises. The contract’ under which they did this is disclosed by their testimony, which we quote:

Jones testified:
“Q. What was the language used by him [appellant], as near as you remember, in reference to same?_ A. He told me to go over there, live there, build a house, keep the taxes paid up on it; when it got to be worth enough, we would sell it and divide up the profits. I went down and kept all taxes paid up on it myself. Q. Kept all the taxes paid? A. Ves, sir. Q. What part were you to have of the land? A. From that I imagined to be divided in halves. Q. Was that the contract? A. Ves, sir.”

And appellee further testified that he paid the taxes on the property because it was agreed that he should do so, which testimony was followed by the following:

“Q. For what purpose? What made you pay those? A. For my part of the place. Q. So you could get your one-half interest in the place? A. Ves, sir.”
Mrs. Jones testified:
“Mr. Snover agreed with us when we moved on the place to pay all taxes and keep them all paid up, and, when they sold, each one take their share of the money and then divide the profits. We had been in there more than a year when Mr. Snover made that agreement; maybe not a year; we never had a word about it only at that time. Prior to the time this property was bought, I never had any conversation with my sister about getting a home; only that one time Mr. Snover asked me was I homesick. I said, T have no home to be sick about,’ and he said, ‘Never mind, Molly; I will buy you a home.’ That was before he bought us a home. He and my husband were sitting right on the porch talking about it a number of times; they never said a word about it before the property was bought or before we built the house, so far as I know of. After we moved in we did have a conversation only in the way I have stated; only in a general conversation. * * * Mr.
Snover never claimed to -be the sole owner of that property, only in this way: He said that whenever the property was sold we would divide it and take out our share, and then divide the profits; he said we would take out what we put in on the place in improvements and taxes; that is what I always thought he meant, and take out our share, and then his share, and then divide the profits. * * * I heard the agreement that my husband testified about that Mr. Snover was to let us occupy the property. He did not say that we were to go into possession of the property, pay the taxes, put up this house or any kind of a house we wanted to, and, when the property was sold, we would get half of the profits, but he did say we were to get the amount we paid out in taxes and improvements, and then divide the profits. I do not think there was anything said about the kind of a house we were to put up.”

In order to remove a parol contract for the sale of land from the operation of the statute of frauds, its terms and conditions must be clear and free from all ambiguity and doubt, and it must be established by full, clear, and satisfactory evidence. Murphy v. Stell, 43 Tex. 123; Edwards v. Norton, 48 Tex. 291; Bracken v. Hambrick, 25 Tex. 408.

The contract testified to by Jones and wife was insufficient to vest any interest in the land itself. 20 Cyc. 232, 237. At best, it was but a mere agreement to share the profits arising from the -sale of the land after it had been held until it could be sold at a profit. It is wholly insufficient to sustain a judgment for an interest in the land itself.

Reversed, and judgment here rendered in favor of Snover for the land sued for.

WALTHALL, J., did not sit in this case.


text:
    GALVESTON, H. & S. A. RY. CO. v. ITULE.
    (No. 385.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 21, 1915.
    Rehearing Denied Feb. 11, 1915.)
    1. Carriers (§ 180) — Loss or Injury to Goods — Notice of Claim.
    A notice in writing to the freight claim agent of a connecting carrier of a shipper’s claim for damages was a sufficient compliance with a provision of the contract with the initial carrier requiring such notice.
    [Ed. Note.' — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.]

      2. CARRIERS (§ 185) — Loss OR INJURY TO Goods — Actions—Evidence.
    In an action by a shipper against an initial carrier for damages to .a shipment, a letter written a connecting carrier’s claim agent was properly admitted to show that notice of the claim required by the contract of shipment was given the claim agent.
    [Ed. Note. — Eor other cases, see Carrier?, Cent.. Dig. §§ 835-850'; Dec. Dig. § 185.]
    3. Triad (§ 256) — Instructions—Necessity of Requests.
    If a more complete instruction on one phase of the case than that given by the court was desired by a party, it should have prepared and requested a special instruction covering such matter.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    Appeal from El Paso County Court; A. S. J. Eylar, Judge.
    Action by John Itule against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Beall, Kemp & Nagle, of El Paso, for appellant. Brown & Terry, of El Paso, for appellee.

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

   HIGGINS, J.

Appellee brought this suit to recover damages to a car load of bananas shipped from El Paso to Nogales, Ariz., over the railway line of appellant and connecting line of the.Southern Pacific Company, which damage is alleged to have resulted from negligent delay in transportation occurring upon the connecting line.

It is assigned as error that a peremptory instruction should have been given in defendant’s favor because there was neither pleading nor proof that its negligence was the proximate cause of the injury to the shipment. The position taken is without merit.

The notice in writing given to Brewer, freight claim agent of the Southern Pacific Company, the connecting line, of appellee’s claim for damages was a sufficient compliance with the provision of the contract requiring such notice. Overton v. Railway Co., 160 S. W. 111; Railway Co. v. Linger, 156 S. W. 298; Railway Co. v. Word, 159 S. W. 375; Railway Co. v. Meyer, 155 S. W. 309.

The letter to Brewer was properly admitted in evidence to show notice was given as required by the contract. It was sufficient and properly given to Mm for that purpose.

The third paragraph of the court’s charge is objected to because it failed to instruct that defendant’s negligence must have been the proximate cause of the damage sustained in order to authorize a recovery. The third paragraph of the charge sufficiently covered the question of proximate cause. Railway Co. v. Anglin, 45 Tex. Civ. App. 41, 99 S. W. 897. And,.if a more complete instruction in regard thereto was desired, appellant should have prepared and requested a special instruction covering that phase of the case.

The sixth assignment is without merit, and is overruled. The contention made is adversely disposed of in passing on the second and third assignments.

The last assignment questions the sufficiency of the evidence. Upon examination, the conclusion is reached that it is sufficient to support the verdict and judgment, and this court would not be warranted in setting aside the jury’s finding.

Affirmed.


author: TADBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. KINSLOW.
    (No. 7212.)

    (Court of Civil Appeals of Texas. Dallas.
    Jan. 2, 1915.
    On Motion for Rehearing, Feb. 6, 1915.)
    1. Railroads (§ 273%) — Injuries to Licensees — Duty of Railroad.
    A railroad owes a bare licensee no duty to keep its premises safe, but as to an invitee it must exercise ordinary care to keep its premises reasonably safe.
    [Ed. Note. — Eor other cases, see Railroads, Dee. Dig. § 273%.]
    2. Railroads (§ 275) — Injuries to Licensees — Invitees.
    A public weigher who had placed upon a railroad platform a shipment of cotton, which by mistake contained two bales not intended to be shipped, and who thereafter went to the platform to get the two bales, and, not finding them there, attempted to enter the car into which some of the cotton had been loaded and was injured when the truck iron leading from the platform to the car fell under his weight, was an invitee of the railroad company and not a bare licensee, since his purpose in entering the car was incidental to and connected with the railroad’s business, though not of direct pecuniary benefit to the railroad.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.]
    3. Negligence (§ 32) — “License” Defined.
    A license implies permission or authority and is more than mere sufferance, but it does not imply an invitation.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32

    Eor other definitions, see Words and Phrases, First and Second Series, License.]
    4. Railroads (§ 282) — Injuries to Licensees — Pleading—Assumption of Risk.
    A railroad cannot avoid liability for injuries to an invitee on the ground of assumption of risk where it did not plead that defense.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.]
    5. Trial (§ 192) — Injuries to Licensees— Instructions — Assumption of Facts.
    Where the evidence conclusively shows that plaintiff was an invitee at the time he was injured, an instruction requiring the railroad company to exercise ordinary care to keep its premises safe for him was not erroneous for assuming that he was an invitee.
    [Ed. Note. — Eor other eases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    Appeal from District Court, Grayson County ; W. J. Mathis, Judge.
    Action by N. O. Kinslow against the Missouri, Kansas & Texas Railway Company of

      Texas. Judgment for the plaintiff, and defendant appeals.
    Affirmed and motion for rehearing overruled.
    O. 0. Huff, of Dallas, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. B. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

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

       writ o£ error pending in Supreme Court.

   TADBOT, J.

The appellee, Kinslow, instituted this suit against the appellant railway company to recover damages for personal injuries received by him on December 18, 1911, alleged to have been Caused by appellant’s negligence. On that day a number of bales of cotton had been delivered by the firm of McMahan & Ferrell to appellant on its platform at Sailer, Tex., for shipment. The appellee, as the employé of McMahan & Ferrell, looked after the placing of the cotton on appellant’s platform and marked it. After this was done McMahan •& Ferrell received a bill of lading and cotton tickets for the cotton from appellant’s agent, and, upon examination of them, discovered that they showed the shipment of two more bales of cotton than was intended to be shipped. The appel-lee was then directed by McMahan & Ferrell to go to appellant’s platform, check the cotton, find the two bales, and take them out of the shipment. Appellee, in obedience to these instructions, returned to the platform, and when ho got there found that appellant’s servants were loading the cotton which Mc-Mahan & Ferrell had delivered for shipment into a car and had already put therein six or eight bales. For the purpose of trucking the cotton into the ear, appellant’s servants had laid a truck iron or runway from the platform to the car, one end of the same resting on the floor of the car in the doorway and the other end on the platform. The truck iron is described as being 3% feet wide, 4y2 feet long, and weighing 500 pounds, and that each end deflected in opposite directions a distance of 2 y2 inches from the end. It is charged that, inasmuch as the ends of the truck iron deflected in opposite directions, the same when laid upon a level surface necessarily extended upward a distance of 2 y2 inches, making it necessary to roll the trucks loaded with cotton over the upturned end of the truck iron.' Appellee, not finding the two bales of cotton not intended for shipment on the platform, started over this truck iron to see-whether they had been hauled into the car when the truck iron fell between the car and the platform, carrying him with it, and he received thereby the injuries on account of which he brought this suit. Among the grounds of negligence alleged were that “the servants and employes of defendant negligently permitted the said truck iron to get in such position that the end of same at said car door was not properly supported and would fall to the ground when plaintiff undertook to pass over and across the same into said car”; that “the peculiar shape of said truck iron above set out rendered it necessary that, when same was being used as aforesaid, it be carefully watched to prevent the same being pushed outward from said car and into such position that the same was liable to fall by the passing of the said trucks over same in loading said car, and to keep said truck iron securely situated on said car door so that passing over and across same was -safe, and the said servants and employés engaged in loading said car negligently failed to so watch the said truck iron and permitted the same to be moved outward to or near the edge of said car door, and to get in such position that the same would and did fall under the weight of plaintiff while he was undertaking rightfully to cross from said platform to said car over said truck iron.” The defenses pleaded were a specific denial of the allegations of the appellee’s petition and contributory negligence on his part in that he failed to look at the truck iron to see what position it was in before he stepped on it, well knowing, as he did, that the same was not cleated or fastened. At the conclusion of the evidence the appellant requested the court to charge the jury to return a verdict in its favor. This was refused, and the case submitted on special issues. Upon the jury’s findings judgment was rendered in favor of appellee for the sum of $8,000.

The appellant’s first assignment of error is as follows:

“The court erred in refusing to give defendant’s requested charge instructing the jury to return a verdict for the defendant because the undisputed evidence shows (1) that the plaintiff was not in the employ of the defendant in any capacity, and was not entering the ear on any business of defendant; (2) that plaintiff was on defendant’s premises and entering its car upon his own business or that of his employers, McMahan & Ferrell; (3) That the truck iron that was being used by persons loading cotton into defendant’s car from its platform was provided for and used as a bridge between the platform and the car, not for persons to walk over as a means of entering a car from the platform, but as a means of loading freight from the platform into the car by running trucks loaded with freight from the platform over the truck iron into the car; (5) that plaintiff had not said anything to the defendant, its agents or servants, about entering the car; they had no knowledge of his intention or purpose of entering the car, and no permission was given by the defendant .or its agent on said occasion for plaintiff to enter the car. The defendant, therefore, did not owe the plaintiff any duty of placing or maintaining the truck iron in a reasonably safe position for him to use in passing over it. On the other hand, being, at most, only a licensee, plaintiff, in entering upon defendant’s premises and into its car, accepted the same as he might find it and used it at his own risk, and defendant is in no way liable for any injury sustained on account of his falling while attempting to pass from the platform over the truck iron into the car. And under the facts no liability was shown against defendant, and it was entitled to have the jury instructed to return a verdict in its favor.”

This assignment presents the chief and difficult question for solution arising on the appeal, Was appellee, in attempting to go over tlie truck iron into the car, a bare licensee? If lie was, then appellant did not owe him the duty of exercising ordinary care to provide him a safe way from the platform into the car, and he had to accept the truck iron or runway in the condition in which he found it. If, on the other hand, appellee was attempting to use the truck iron as a means of entering the car in question by invitation of appellant, either express or implied, then appellant owed him the duty to use reasonable care to see that the truck iron and its position were reasonably safe for that purpose.

The testimony of appellee, as stated by counsel for appellant in their brief, and which is practically without contradiction, is the strongest in support of the theory that appellee was a bare licensee in his attempt to use the truck iron, found in the record. This statement of said testimony is as follows:

“Mr. Kinslow testified: T am the plaintiff in this case. I will be 51 years old in February, llave lived at Sadler all my life. Am public weigher there, and have been for about eleven years. My other business is farming. On the day of the injury I was employed by McMahan & Ferrell. Under my arrangement with them I was to move this cotton from their cotton yard and place it on the depot platform for shipment. I went to the bank to see Mr. Mc-Mahan about some cotton, and he told me he had made a mistake of two bales, and for me to go down and check the platform and check out these two líalos and send them back to the cotton yard. When I got to the platform I discovered that the 135 bales of cotton which were to be shipped to. the Denison mill was being loaded into the car, which was about midway of the platform. The cotton was being carried from the platform to the car with a pair of cotton trucks over the truck iron extending from the platform into the car. I undertook to cross over the truck iron and go into the car and got a check on it and see if the two bales were in there. As I went to go over the truck iron a boy brought some trucks out, so I waited until he had passed over it. I then stepped on it and it fell. I was looking where I was going as I would look if I was going anywhere else. I had been in the habit of crossing over the truck iron at that time for a period of about 16 years. It had never fallen with me before. When I stepped on it it must have fallen out of the car and turned turtle. When I weighed cotton for McMahan & Ferrell I took the cotton and put it on the platform and marked it and checked it — that is, I would have it put on the platform. McMahan & Ferrell paid me 15 cents a bale to put the cotton on the platform and mark and check it. This was my contract with them. Of course I had nothing to do with the loading of the cotton into the car. When I placed it on the platform and marked and checked it, it was for the railroad company to load it in the car and ship it; that was their business. On this occasion I was going to see about two bales of cotton that) seemed to have gotten mixed with the 135 bales by mistake. I did this at the instance of Mr. Mc-Mahan. I did not see the agent before I started to go into the car. I never said anything to him about there being a mistake. The mistake was not made by me or my man. Whatever mistake there was was made by Mr. Mc-Mahan. It was not made by the railroad agent or any one connected with the railroad company. I had been acquainted with this truck iron or running board for a long time, probably all the time I had been public weigher there. At one time I had a contract with the railroad company for loading the cotton, and loaded it for several years. At that time I used this same running board. I was perfectly familiar with the construction of it, and how it was used in bridging the space between the car and the platform for the purpose of trucking the cotton over it. At the time I had the contract for loading the cotton the running board was in about the same condition it was at the time l got injured. At that time the trucks would gradually work it out and I would have to replace it. It would at times get jostled and I would have to watch it in running the trucks over it. It was the daytime when I got hurt; some time in the evening, before night. I know the running board must have been resting on the car because the boy came out with the trucks. I had to stop until he got over, and after he got over it I stepped on it. I know it must have been resting on the car or it would have fallen of its own weight. Certainly I did not stop to see how the running board was. I do not know how much it was lapping over the car door. Certainly I did not stop to examine to see how it was. I did not look for that purpose. 1 make it a habit after the car is loaded to go up there and check it over for my protection, to see that the correct number of bales are there. Under my arrangement with this shipper it was my business to see that he shipped out the correct number of bales.’ ”

The courts have sometimes had difficulty in distinguishing a license from an invitation on the one hand, and from mere sufferance or acquiescence on the other. So, the difficulty we encounter in disposing of this appeal is the determination, from the facts shown, of the question of whether appellee was a mere licensee or an invitee in his attempted use of the truck iron.

It is held that a license implies permission or authority, and is therefore more than mere sufferance, but does not imply an invitation. And one may have permission to do a certain thing for his own benefit and yet not be invited to do so. If, however, a person has permission to go upon the premises of another, he will, as a general rule at least, be deemed to be a licensee; and if he is invited he is more than a licensee, and the owner is bound to use ordinary care to save him from injury while upon the premises. So that one who goes upon the premises of a railroad company merely to speak to an employé of the company and not upon business with the company is a mere licensee, but if his presence there is “for the purpose of loading or delivering and receiving freight ho is not a mere licensee, but is entitled to the care due one who is invited to come upon the premises of another.” Elliott on Railroads, vol. 3 (2d Ed.) § 1248. It is clear, we think, that if appellee had been injured while upon appellant’s platform delivering and checking the shipment of cotton in question, by reason of the failure of appellant to exercise ordinary care to see that the platform was safe for the transaction of that business, it could not reasonably be denied that he was there by the implied, if not the express, invitation of appellant. He was the representative of McMahan & Ferrell, the shippers of the cotton, and for the purposes of its shipment lie occupied the same relation to appellant that either McMahan or Ferrell would have occupied had he been present in person delivering and checking the cotton. Touching the shipment of the cotton and the ap-pellee’s connection with it, Mr. McMahan testified:

“I know the plaintiff, N. O. Kinslow. I heard of the occasion of him being injured. On that day I had a transaction with him. I shipped 135 bales of cotton to Denison that day, to the Denison mill. I had a conversation with Mr. Kinslow in reference to that shipment. I had him to load the cotton on the platform and to check it for me. I made a statement to him in reference to an error in the shipping list. At that time there was loaded on the platform 137 bales of cotton, and we got our bill of lading and went to the bank to settle, and in checking the cotton tickets there was 137, which should have been 135, and then we called him and had him check the cotton, and at this time they had loaded part of it in the car. I directed him to check the cotton to get the two bales that didn’t belong in the list and take them out of the shipment. That was before he was injured. It was just a few minutes before the occurrence of his injuries that I give him these directions.”

At the time appellee received his injuries he was endeavoring, in obedience to the foregoing instructions given him by his employer, McMahan, to find and withdraw from the shipment the two bales of cotton included therein by mistake. He was not then engaged in doing something necessary to be done originally in making the shipment of the cotton, nor was he engaged in receiving freight consigned to him or his employer; and the question is, Was appellee, under all the circumstances shown, clothed with implied authority by invitation to enter appellant’s ear in search of and for the purpose of reclaiming the two bales of cotton delivered to it by mistake for shipment? We have concluded this question should receive an affirmative answer. It seems to be settled law that where a person has entered on the premises of another under invitation, express or implied, he is bound by that invitation, and becomes a bare licensee if he goes to some other part of the premises for purposes of his own, or remains on the premises beyond a reasonable time after permission has expired; but we do not believe this principle has application here. The appellant was engaged at the town of Sadler, where appellee was injured, as a common carrier for hire, in the business of receiving and transporting cotton and other commodities. It had, on the day appellee was injured and but a very short time before the accident happened, which resulted in appel-lee’s injury, received from him, as the agent of McMahan & Ferrell, a number of bales of cotton for shipment. The number of bales intended to be shipped was 135, but when the bill of lading and cotton tickets issued by appellant were examined it was discovered that two bales more than that number had been inadvertently or by mistake delivered for shipment. With a view of correcting this mistake, appellee attempted to enter the car into which the intended 135 bales shipment, or a part thereof, was being placed for transportation, and, according to the finding of the jury, was injured through the negligence of appellant in failing to have the truck iron, provided and being used as a means of entering the car from the platform, placed and adjusted in a reasonably safe manner for that use. The purpose of appellee in attempting to enter appellant’s car was clearly, it seems to us, connected with the business in which appellee was engaged, and brings his case within even the rather strict rule announced by the Supreme Court of Massachusetts (Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463), that—

‘‘to come under an implied invitation, as distinguished from a mere licensee, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant.”

That the object of appellee in trying to enter the car in question was incident to and connected with appellant’s business seems very clear, and that both had some interest in the subject to ■ which appellee’s business related can hardly be questioned. That no pecuniary benefit would accrue to appellant by the withdrawal of the two bales of cotton from the shipment, or that its retention in the shipment would probably have slightly enlarged its freight charges, is immaterial. Appellant was interested in the subject to which appellee’s business related, to the extent of not transporting over its lines cotton which appellee or those he represented did not intend should be transported, and to accord to him and them as its customers more than a bare permission to enter upon its premises to correct an inadvertence or mistake in reference to the subject of shipment. It occurs to us that appellant was at least under some moral obligation in this case, not only to say to appellee,, come and correct this mistake by taking out of the shipment the two bales of cotton, but to assist to some extent in locating them, and, a part of the cotton having been loaded in the car, appellee could very naturally and reasonably infer that he was invited to enter the car for that purpose. It follows that, in our opinion, ap-pellee’s attempted entrance into appellant’s car and his use of the truck iron for that purpose was by invitation of appellant, and hence its peremptory instruction for a verdict in its favor was properly refused.

The next proposition of appellant is that, the position and method of use of the truck iron being open and obvious to plaintiff, and he being familiar with such use and the liability of the iron to slip, he assumed the risk of its falling. It is a sufficient answer to this proposition to say that the issue of assumed risk was not in any manner pleaded by defendant, and that without such a plea the question cannot be raised and relied on as a defense. Railway Co. v. Harris, 95 Tex. 346, 67 S. W. 315; Price v. Consumers’ Cotton Oil Co., 41 Tex. Civ. App. 47, 90 S. W. 717. As hereinbefore stated, the defenses pleaded by the appellant were a specific denial of the allegations of the appel-lee’s petition and contributory negligence.

The court submitted to the jury the following issue:

“Hid the servants, agents, and employés of defendant fail to exercise ordinary care in placing or maintaining said truck iron in such position that same was not reasonably safe for plaintiff to use in passing over same into said car?”

In explanation of this question, which the jury answered in the affirmative, the court told the jury that “it was the duty of defendant, its servants and employés, in loading freight into said car at said time, to exercise ordinary care to so place and maintain said truck iron in such position that same would be reasonably safe for plaintiff to use said car at said time”; and by its sixth assignment of error appellant complains of this explanation, and says the same does not correctly state the law applicable to the facts, because plaintiff, in going over the runway into the car, was only a licensee, and appellant owed him no duty to exercise care to provide him a safe way from the platform into the ear; that—

“the charge was erroneous, in that it assumed that plaintiff was au invitee, whereas the undisputed evidence shows him to have been only a licensee; that the charge was on the weight of the evidence, in that it assumed that plaintiff was an invitee, whereas, if the evidence did not show plaintiff to be a mere licensee, it was not of such character that the court could declare him to be an invitee, but the question was one for the jury; that the charge was on the weight of the evidence, because, if the evidence did not conclusively show that the risk and danger of using the truck iron as a walkway were patent and obvious to plaintiff so that he assumed such risk, it at least so strongly tended to prove this fact that the court eouid not assume the contrary and take the issue from the jury.”

The issue of assumed risk was not in the ease, and we have already held that the evidence shows that appellee, in attempting to enter the appellant’s car, was not a bare licensee, but an invitee. Whether one claiming to have been injured by the defective condition. of the premises on which the accident resulting in his injury occurred was a licensee or an invitee may often be a question of fact for the determination of the jury, but we think the evidence in the case at bar so conclusively shows that appellee was an invitee that nothing remained upon the close of the evidence upon this question but for the court to instruct the jury, as he did in connection with No. 2 submitted to them, that the duty devolved upon appellant to exercise ordinary care to so place and maintain the truck iron that it would be reasonably safe for appellee to use in entering the car. There are some other assignments of error, but they have been disposed of against appellant by what has been already said. We think all the material issues of fact arising upon the pleadings and evidence were fully and fairly submitted to the jury, and their findings are justified by the evidence. It is not contended that the verdict is excessive, nor do we find any assignment asserting that the evidence fails to show actionable negligence on the part of appellant in permitting the truck iron - to be in the position it was in when it fell and caused ap-pellee’s injuries, and believing, as we do, that no reversible error is pointed out, the judgment is affirmed.

Affirmed.

On Motion for Rehearing.

We probably erred in stating in our original opinion that McMahan & Eerrell received cotton tickets from appellant’s agent for the cotton placed upon its platform for shipment. There is no direct testimony showing who issued the cottón tickets referred to, or from whom McMahan & Eerrell got them, and these tickets, and not the bill of lading issued by appellant’s agent, showed there were two bales in the lot not intended to be shipped. McMahan’s statement is:

“At that time there was loaded on the platform 137 bales of cotton, and wo got our bill of lading and went to the bank to settle, and in cheeking the cotton tickets there was 137, which should have been 135, and then we called him (Kinslow) and had him check the cotton, and at this time they had loaded part of it in the car. I directed him' to check the cotton to get the two bales that didn’t belong in the list and take them out of the shipment. That was before he was injured. It was just a few minutes before the occurrence of his injuries that I give him these directions.”

This, however, does not require any change in the disposition made of the appeal. We think the case, upon the practically undisputed facts, has been correctly decided. The appellee had been cotton weigher at Sadler for a number of years, and, as further supporting our conclusion that he was an invitee, we quote from the testimony of appellant’s agent, O. W. Atkins, as follows:

“Yes, so far as I know, the cotton weigher had free access to the platform and cars. Frequently he went in and out of the cars chocking cotton on the platform. He was on the platform at the time he was checking cotton. As to whether it was with my knowledge and permission, I never give him permission to. I didn’t object to it; no, sir. I didn’t know he was there on this date. I have known of him being on the platform. I never saw him in the cars; he could have gone in if he wanted to.”

The case is distinguishable in its facts from Louthian v. Ft. W. & D. C. Ry. Co., 50 Tex. Civ. App. 613, 111 S. W. 666, and should not be controlled thereby. The motion for rehearing is overruled.