author: RAINET, C. J.

text:
    INTERNATIONAL BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYÉS v. DUNCAN et al.
    (No. 7703.)
    (Court of Civil Appeals of Texas. Dallas.
    April 21, 1917.
    Rehearing Denied May 19, 1917.)
    1. Insurance <®=W55(3) —. Mutual Benefit Insurance — Forfeitures—Waiver.
    A mutual benefit insurance association, by receiving money on dues and assessments subsequent to their due date, waived the forfeiture clause of the policy.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1909-1913, 1915, 1916.]
    2. Insurance <®=^785 — Mutual Benefit Insurance — Failube to Name Beneficiary— Effect.
    Where beneficiary under mutual benefit insurance policy died, and the object of the order was to protect the widows and orphans of members, the insured’s failure to name another beneficiary did not cause tlie amount of the policy to revert to the order, where he left children surviving him.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1943, 1974.]
    3. Insurance <®=^736 — Mutual Benefit Ins urance — Assessment—Validity.
    Under mutual benefit association’s by-laws, empowering the executive committee to make assessments, levying an assessment by means of letters written by members of the committee who lived at widely separated points, was illegal, and the assessments were nonenforceable.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1883.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit hy Mrs. W. A. Duncan and others against the International Brotherhood of Maintenance of Way Employés. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Chilton & Chilton, of Dallas, and Clyde I. Webster, of Detroit, Mich., for appellant. Cockrell, Gray & McBride, of Dallas, for ap-pellees.
   RAINET, C. J.

Appellees instituted this suit against appellant to recover $1,000 on , a benefit certificate issued to E. N. Christopher, as a member of the order of International Brotherhood of Maintenance of Way Employés. It was alleged that Christopher had died, and that appellees were his sole heirs, they being Ms children. Appellant answered by general demurrer and general denial and specially that the policy had been forfeited hy nonpayment of dues, and that Mary Christopher, wife, was named beneficiary in said certificate; that she had died before E. N. Christopher, which lapsed the policy and caused its reversion to said order. Appellees, hy supplemental petition, denied the allegations in appellant’s answer, denied the forfeiture of the policy, that appellant had made illegal and wrongful assessments, and that its sums on hand were more than sufficient to pay valid assessments, etc., and that if assessments were not paid on date when due, appellant had waived same by reason of having received payments after they were due. Appellant filed a supplemental answer denying appellees’ supplemental petition, that appellees were estopped to claim any illegality in making assessments, as same were paid without objection, and that same were legally made and acquiesced in. The case was tried by the court without a jury, and judgment rendered against appellant.

Conclusions of Fact.

Appellant is a beneficent society, and at one time it. had an insurance department for the benefit of its members. It issued a benefit certificate for $1,000 to E. N. Christopher, who died January 12, 1913, leaving his children, appellees herein, as his only heirs.

The rules of the order provided for the forfeiture of the certificate if any assessment of dues was not paid at the date same became due. E. N. Christopher at the time of his death had paid all dues owing to appellant, and said policy was in full force, although on various occasions dues and assessments had not been paid at the date due, but were subsequently paid, and the money retained hy the society. During the year 1912 there were six illegal assessments paid by Christopher, which, with what he had paid in addition thereto at the time of his death, had overpaid what was due by him. Mrs. Christopher, the wife, named in the certificate as beneficiary, died before E. N. Christopher did. One of the objects of the order was for the protection of the widows and orphans of its members.

Conclusions of Law.

1. That, the order having received money on dues and assessments from Christopher subsequent to the date when due, and having retained same, it waived the forfeiture clause of the certificate; therefore Christopher did not stand suspended at the time of his death. Assur. Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625.

2. Appellees being the children of Christopher and wife, they were entitled to recover by virtue of said certificate; the appellant became liable thereon. The failure of E. N. Christopher to name another beneficiary after his wife’s death did not cause the amount of the certificate to revert to the order; he having left his children surviving him, the appellees herein. Grand Lodge v. Iselt, 37 S. W. 377.

3. The by-laws empowered the executive committee, when they thought necessary, to make assessments, but this was done singly by each committeeman writing to the secretary; the committee living at different points widely separated. We think the committee should have acted collectively, and not separately, and therefore we hold that their action in this respect was illegal and the assessments nonenforceable. 39 Cyc. 307; McLane v. Belvin, 47 Tex. 493; Hart v. Rust, 46 Tex. 557.

The Judgment is affirmed.
      <&=sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    WOLFE CITY MILLING CO. v. WARD.
    (No. 5839.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1917.
    Rehearing Denied May 16, 1917.)
    1. Contracts <&wkey;352(3); — Action for Breach — Directed Verdict — Conflicting- Evi-: dence.
    In an action to recover damages for breach of contract to deliver flour, it was proper to refuse to instruct a verdict for defendant, where there was conflicting evidence on plaintiff’s part as to the terms of the contract relating to a tender of the flour.
    2. Principal and Agent &wkey;>175(2) — Authority of Agent — Ratification.
    Where the principal ratifies a contract made by his agent, it is immaterial, in a suit upon such contract, whether the agent had authority to make it or not.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 663.]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by B. F. Ward against the Wolfe City Milling Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jno. W.' Thames, of Kenedy, R. L. Marshall, of ’Devine, and Chas. Troy, of Beeville, for appellant. Dougherty & Dougherty, G. C. Robinson, H. S. Bonham, and B. D. Tarlton, Jr., all of Beeville, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee to recover damages alleged to have accrued by reason of the failure of appellant to deliver -to him, in compliance with the terms of a certain contract, two carloads of flour. The cause was submitted to a jury on special issues, and on the answers thereto judgment was rendered in favor of appellee for $831.65. This is a second appeal, and on the former one this court reversed the judgment for reasons given in the opinion published in 185 S. W. 663.

It is the contention of appellant that the contract with appellee was that the fiour was to be paid for on the terms fixed by appellant, and that appellant fixed the terms of payment on demand; that is, when a bill of lading with draft attached reached Beeville. Appellee, however, testified that the contract provided for payment when the flour reached Beeville. The testimony on this subject was conflicting; and, while under appellant’s testimony the tender of the bill of lading might be a tender of the flour, under the testimony of appellee the only tender possible was the flour itself. The first assignment of error proceeds upon the assumption that the evidence of appellant alone should be considered as to the terms of the contract, but the court thought that the evidence of ap-pellee was entitled to some consideration, and very properly refused to instruct a verdict for appellant. Appellant seems to labor under the belief that as appellee was to pay cash for the fiour, that meant he should pay for. the flour before he received it. The general acceptation of paying cash for a commodity is paying for it when delivered to the buyer, unless otherwise agreed. The jury found that it was agreed that the flour was to be paid for when it was delivered to ap-‘ pellee at Beeville.

The second assignment of error is overruled. It is immaterial whether the ’ agent had the authority to make the contract or not, as the jury found that the contract was ratified by appellant. If the jury had found that Thomas was not the agent of appellant, but that the contract made by him was adopted or ratified by appellant, that would bind appellant as though he had full power to make the contract.

The third assignment of error attacks the tenth special issue submitted by the court, because there were “two ¡juestions asked in the form of one.” The ’ proposition under the assignment is to the effect that it is error to submit the issue as to the market value when the evidence was not sufficiently definite for the jury to find such value. The tenth issue is not referred to in the statement, but the thirteenth issue as to reasonable market value is copied. The assignment is overruled.

The court did not err, when requested by the jury, in explaining one of the issues to the jury. The explanation could not in any way have injured appellant. The objection is merely academic.

There is no merit in any of the assignments of error, and the judgment is affirmed.
      <§z»For other cases see same topic and KBY-NXJMBER in all Key-Numbered Digests and Indexes


author: FDY, C. J.

text:
    AMERICAN SURETY CO. OF NEW YORK v. JOHNSTON & BURNETT.
    (No. 5834.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 28, 1917.
    Rehearing Denied May 19, 1917.)
    1. Principal and Surety <&wkey;79 — Liability on Bond — “Misapplication.”
    The action of the agent of an insurance company in collecting premiums and failing to deliver same to his employer constituted a “misapplication” within the provisions of a bond indemnifying the employer against loss sustained by any misapplication of such agent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 125.
    For other definitions, see Words and Phrases, First and Second Series, Misapplication.] •
    2. Principal and Surety <&wkey;123(l) — Discharge op Surety — Prior Misconduct.
    That such agent had made a misapplication of funds before the bond was executed did not cancel the liability of the surety company where it did. not appear that the agent had been guilty of any crime, but had merely been in arrears in his prior payments.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 304-309.]
    ' Error from Bexar County Court for Civil Cases; John I-I. Clark, Judge.
    Action by Johnston & Burnett against the American Surety Company of New York. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. F. Carl and P. H. Swearingen, Jr., both of San Antonio, for plaintiff in error. Tal-iaferro, Cunningham & Birkhead, of San Antonio, for defendant in error.
   FDY, C. J.

This is a suit brought by Johnston & Burnett against the American Surety Company to recover the sum of $500 on a bond given by the latter to secure the faithful performance of certain duties on the part of W. R. Meredith, an employé of Johnston & Burnett. It was alleged that Meredith had collected certain premiums on certain policies to be issued by his employer, amounting to the net sum of $628.85, and had failed and refused to pay over the same to his employer; that the surety company and Meredith had executed a bond to Johnston & Burnett, hereinafter called the 'employer, by which they bound themselves to pay to the employer for any pecuniary loss not exceeding $500, sustained by them “by any act or acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or misapplication on the part of said employe, directly or through connivance with others while in any position or at any location in the employ of said employer.” A trial' by the court resulted in a judgment for the employer in the sum of $500.

The first assignment of error complains of the overruling of a general and a special exception to the petition. It is overruled. The petition clearly set out a cause of action on the bond.' The cause of action was not one founded on a debit and credit account between employer and employé, but. on a loss due to a' misappropriation of the funds belonging to the employer. We can hardly conceive of the object and purpose of the bond if it does not cover the case of the appropriation of money belonging to the employer. The employé had collected certain money of his employer, which he should have delivered to the employer, but which he failed to do. The terms of the bond were broad enough to perfectly cover the case. They cover any pecuniary loss, not in excess of $500, sustained by the employer of money or property by any act or acts of fraud, etc., or misapplication on the part of the employé. It would seem to be a misapplication to collect premiums from persons seeking insurance, and never deliver them to the employer. This is not a parallel case to either of the cases cited by the surety company. In the case of Dixie Ins. Co. v. Nelson, 128 Tenn. 70, 157 S. W. 416, it was held that where an agent was permitted to collect and deposit premiums in his own name and use the same in his business, he was not guilty of embezzlement under the terms of the policy of insurance in that case. The terms 6f that policy were not nearly so broad as those used in the policy in this case. The federal ca'se of Monongahela Coal Co. v. Fidelity Co., 94 Fed. 732, 36 C. C. A. 444, does not construe the terms of the bond, but merely holds that where a balance is due by the agent on a settlement between him and the principal that would not show such an appropriation as was contemplated by the parties. It is not in point. In this case there were no accounts kept between the employer and em-ployé, but the latter was required as soon as he collected a premium to remit it to the employer.

The second assignment of error is overruled. The fact that Meredith may have made misapplication of funds before this bond was executed could not excuse the acts afterwards nor cancel the liability of the insurer. Joyce, Ins. § 2766; Hebert v. Lee, 118 Tenn. 133, 101 S. W. 175, 12 L. R. A. (N. S.) 247, 121 Am. St. Rep. 989, 11 Ann. Cas. 1029. In the last-cited case it was held:

“We think there can be no doubt that the mere failure upon the part of the complainant to inform these sureties of the fact that their principal, Lee, had fallen behind from time to time in his accounts as agent, until his liabilities had amounted at the execution of these two bonds to the sums stated, would not be sufficient to relieve them from liability. If the present case was that — in other words, if this was a case in which the agent was simply behind in his accounts, and the complainant had failed to communicate, in the absence of investigation or inquiry upon the part of the sureties, this fact to them — we think this would not constitute a ground for resisting a recovery on these bonds.”

The court followed tlie quotation with the holding that as the agent had been guilty of the crime of embezzlement, that fact should have been communicated to the sureties. In the present ease it was not alleged or proved that the agent had been guilty of a crime, but had, prior to the execution of the bond, been in arrears in his payments. There are numbers of cases that do not make the exception made by the Tennessee court. Home Ins. Co. v. Holway, 55 Iowa, 571, 8 N. W. 457, 39 Am. Rep. 179, and numerous authorities therein cited. However it is not claimed that Meredith had been guilty of a crime before the bond was executed. ‘Embezzlement was not charged against Meredith, in the petition. The evidence does not show that the employer knew of any criminal conduct upon the part of Meredith before the bond was executed. Zevely, an employé of the surety company, testified to a conversation with Burnett, in which the latter had said that Meredith had been slow in remitting premiums, and had given worthless checks for the same, but had “by some hook or crook” settled up. Burnett denied the conversation with Zevely, and testified that he never suspected Meredith of being crooked until he notified the surety company after the bond was executed. It seems that the court believed him.

The third, fourth, and fifth assignments are based upon questions of fact upon which the evidence was conflicting, and they are overruled.

The sixth assignment of error is a reiteration of a portion of the first assignment, and is overruled.

The judgment is affirmed.

SWEARINGEN, J., entered his disqualification in this case.
      <®=s>For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIS, J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. STATE.
    (No. 173.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 5, 1917.
    Rehearing Denied May 9, 1917.)
    1. Railroads <&wkey;22G — Statutes — Implied Repeal — Railroad Station Facilities.
    Vernon’s Sayles’ Ann. Civ. .St. 1914, arts. 4528, 4537. 4543, under which railroads may be criminally prosecuted for not maintaining sanitary closets at stations, complements, but does not repeal, Rev. St. 1911, arts. 6592-6594, providing a civil penalty for the same offense.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 740.]
    2. Trial <&wkey;350(3) — Special Jury Findings.
    In action under Rev. St. 1911, arts. 6592— 6594, against a railroad to recover penalties for failure to maintain sanitary closets at stations, defendant is not entitled to special jury findings specifying what particular weeks it violated the law, where the evidence supports the jury’s findings as to the total number of weeks.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 831.]
    Error from District Court, Liberty County; J. Llewellyn, Judge.
    Action by the State of Texas against the Beaumont, Sour Lake & Western Railway Company. Judgment for the State, and defendant brings error.
    Affirmed.
    See, also, 173 S. W. 641.
    Andrews, Streetman, Burns & Logue, of Houston, for plaintiff in error. C. H. Cain and Marshall & Harrison, all of Liberty, for the State.
   DAVIS, J.

This is a penalty suit, brought by the county attorney of Liberty county, Tex., on January 29, 1913, against the Beaumont, Sour Lake & Western Railway Company, to recover penalties, on account of alleged violations of articles 6592, 6593, and 6594, Revised Statutes of 1911. These articles imposed upon the railroad companies certain duties as to the construction and maintenance of suitable and sanitary water-closets, and provided for a forfeiture to the state of $50 for every week they failed, neglected, or refused to comply with the provisions of these statutes. The case was tried before a jury, and was submitted to the jury by the trial court on special issues, resulting in a verdict and judgment in favor of the plaintiff; and, motion fof new trial having been overruled, the defendant railway company has appealed to this court.

Plaintiff in error assigns as error “that the trial court erred in entering any judgment against the defendant, because the petition states no cause of action, it appearing that the act upon which the' suit is based has been, long prior to the trial, superseded and repealed,” and urges that articles 4528, 4537, and 4543 of 'Vernon’s Sayles’ Texas Civil Statutes 1914, creating the state board of health, and the enaction of the Sanitary Code of Texas (Vernon’s Sayles’ Ann. Civ. St. .1914, art. 4553a), leaves no room for doubt that articles 6592, 6593, and 6594 of the Revised Statutes of 1911 have been completely superseded and repealed. With this contention we do not agree, and it is our opinion that the law creating the state board of health, and the creation of the Sanitary Code of Texas, are merely complementary of the act under which this suit was brought, and its purpose was to add additional and different remedies to matters pertaining to railway depots and closets not provided for in this act, and prescribing penalties for a violation thereof. There is no expression on the part of the Legislature to abrogate or repeal these articles of the statute by the enactment of the laws creating the state board of health and the Sanitary Code of Texas. The Sanitary Code created a criminal responsibility by making a violation of it a misdemeanor, punishable by a fine of not less than $10 nor more than $1,000, while the act under which this suit was brought provided a penalty recoverable in a civil suit, and in no wise affected by a criminal prosecution under tbe law last enacted. Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; Berry v. State, 69 Tex. Cr. R. 602, 156 S. W. 626; Cole v. State, 106 Tex. 472, 170 S. W. 1036; Ex parte Keith, 47 Tex. Cr. R. 283, 83 S. W. 683; Braun v. State, 40 Tex. Cr. R. 236, 49 S. W. 621; Conley et al. v. Daughters of the Republic et al., 106 Tex. 80, 156 S. W. 197, 157 S. W. 937; Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147;. McFarlane v. Westley, 186 S. W. 261.

Plaintiff in error, defendant below, neither by pleadings, proof, nor in its motion for new trial, raised the question now presented to us under its first assignment of error, and urges that it was not necessary to do so, because, the act under which this suit was brought having been abrogated and repealed by what it terms the “new act,” it was fundamental error to render judgment in favor of the state on the pleadings in this case. It will not be necessary to pass on this question, since we hold that the “new act,” as designated by plaintiff in error, does not abrogate or repeal the act under which this suit was brought..

We do not think the contentions of plaintiff in error, as presented in its second and third assignments of error, are well taken. The evidence conclusively shows that plaintiff in error for a period of 69 weeks failed, neglected, and refused to keep its water-closets in a sanitary condition, as provided by the statute under which this suit was brought. It is true that defendant in error sued to recover penalties of $50 per week for 104 weeks, amounting in the aggregate to the sum of $5,200, and the proof shows that the water-closets of plaintiff in error were in an unsanitary condition for practically all of this time; yet there was proof on the part of the defendant that at different times these closets were put in such sanitary condition as the law required, and the jury, taking all the proof, unquestionably tempered the verdict with mercy in finding only 69 weeks, and we do not think there was error on the part of the court in refusing to require the jury to specify just what weeks, out of the 104 weeks, the defendant was guilty of failure, neglect, and refusal to keep its closets in that sanitary condition required by law. That it failed, neglected, and refused to keep its water-closets in that sanitary condition as required by law for as much as 69 weeks, covering part of the time alleged in plaintiff’s petition, is as certain to our minds as evidence can make it, and for defendant now to say that, although this may be true, yet it is entitled to a finding of the jury as to just what weeks it failed to comply with the law, appears to us to be ridiculous, and we are of the opinion that the evidence is sufficient for a basis for a finding by the jury of any of the weeks included in plaintiff’s petition.

This is the second appeal of this case. The first appeal was decided by the Court of Civil Appeals at Galveston, in which the case was reversed and remanded, and is reported in 173 S. W. at page 641.

There being no error in the trial of this case, we are of the opinion the same should be affirmed; and it is so ordered.

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


text:
    INTERNATIONAL & G. N. RY. CO. v. MUDD.
    (No. 5843.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 18, 1917.
    Rehearing Denied May 16, 1917.)
    1. Carriers &wkey;?228(5) — Carriage of Live Stock — Actions for Delay.
    In a shipper’s action for damages to a shipment of stock owing to delay and a consequent shrinkage, evidence held sufficient to sustain a finding that the carrier was negligent in failing to provide a proper engine to pull the train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 060.]
    2. Continuance <&wkey;26(3) — Grounds.
    Where a continuance is sought on account of the absence of a witness, it will be refused, in the absence of a showing of diligence in attempting to procure such evidence.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 77, 81, 83.]
    3. Evidence <&wkey;519 — Experts—Weight.
    In a shipper’s action for damages due to a delayed shipment of live stock, the evidence of an expert as to the weight of the cattle was properly admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2328.]
    4. Evidence <&wkey;491 — Time — Opinion Evidence.
    In a shipper’s action for damages due to a delayed shipment of live stock, a witness, qualified as an expert, might testify as to the time it usually took to make the trip between the point of shipment and destination.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2269.]
    Appeal from Frio County Court; S. T. Dowe, Judge.
    Action by George H. Mudd against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 179 S. W. 686.
    Cobbs & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Magus Smith, of Pearsall, for appellee.
   FLY, C. J.

This is a suit for damages to a shipment of 50 head of cattle which were delivered by appellee to appellant on February 20, 1912, for’ transportation from Dilley, Tex.-, to Ft. Worth, Tex. The negligence alleged was a delay for 20 hours on the way to Ft. Worth, whereby the cattle lost greatly in weight and reached their destination in a bruised and emaciated condition. Appellant sought to excuse the delay on the ground that the train containing the cattle was struck by a violent windstorm and cold weather Detween Dilley and San Antonio, by which the locomotives were chilled and could not maintain sufficient steam to haul the train to San Antonio in the usual time against the strong north wind; that the track was covered with sand, and sand got into the machinery and stalled the locomotive; that the telegraph poles were blown down, and control of the train by wire prevented, causing further delay; that the cattle on account of the delay missed connection at San Antonio, and had to be held over until the next train left for Ft. Worth. Customary shrinkage in weight was also pleaded’. The cause was submitted to the court, without a jury, and judgment was rendered in favor of appellee for $600, with interest and costs.

The first assignment of error questions the sufficiency of the evidence to sustain the judgment. We think negligence on the part of appellant was shown by the evidence. The cattle were delivered to appellant, in fine condition, about 10 o’clock on the morning of February 20, 1912. The cattle had been fattened for market, and were put in two cars. They weighed from 1,000 to 1,250 pounds each. The cattle should have reached Ft. Worth on February 21st, but did not reach there until February 22, 1912. They were on the road about 48 hours. The usual run was from 23 to 25 hours. The cattle were in bad fcondition when they reached Ft. Worth, being scratched and bruised and sold for less than if they had reached the market in good condition. There was a hard wind blowing from the northwest on February 20, 1912, but the delay in reaching San Antonio arose from a leaky engine. The leaking came from running the,engine without sufficient water. The engine got in such condition between Dilley and San Antonio that it would not move. If the engine had worked properly, the train would have reached San Antonio before the storm became violent. The train was running behind time before the wind came.

The questions of the measure of damages and the class of cattle are not raised by the assignment, although discussed in an argument following the assignment.

The second assignment of error is overruled. The application for the continuance was made on account of the absence of H. P. Anthony, by whom it was alleged that appellant expected to prove certain matters, followed by the allegation that the witness was dead. Although it is stated in the application that appellant “expects to procure this testimony at the next term of court,” it must mean from some other source; otherwise it would disclose an impossibility on its face. It is not, however, intimated that other witnesses will be procured to testify to the facts. No effort had been made to obtain the testimony of the witness by having him present or by taking his deposition. No diligence whatever ' was shown to procure the testimony. It is not stated that the witness, an employé of appellant, had ever attended any term of the court, although the suit was filed on May 16, 1912, and was tried on May 31, 1916.

The witness, Mudd, showed that he was an expert in estimating the weight of cattle, and his evidence as to the weight of the cattle was properly admitted. Rogers Expert Testimony, p. 267; Railway v. Greathouse, 82 Tex. 104, 17 S. W. 834; Filley v. Billings, 26 Neb. 537, 42 N. W. 713.

E. O. Foster was shown to have' been engaged for 20 years in shipping cattle from Pearsall, Cotulla, Laredo, Fowlerton, and Carrizo Springs to St. Louis, St. Joe, Ft. Worth, and Oklahoma, and had made trips with cattle 20 or 25 times. He said he knew how long it usually took to make the trip from Dilley to Ft. Worth, and testified as to the time. The testimony was admissible. The witness qualified as an expert. No objection was urged to the evidence on the ground that the witness was not shown to be an expert, but on the ground that it called for a mixed conclusion of law and fact and was hearsay. We fail to see any question of law in the evidence. It was a question purely of fact, and was not hearsay.

The judgment is supported by law and the facts, and the eleventh assignment of error is overruled.

The judgment is affirmed.
      (&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BUCKHOLTS STATE BANK v. HARRIS et al.
    (No. 5781.)
    (Court of Civil Appeals of Texas. Austin.
    April 18, 1917.
    Rehearing Denied May 16, 1917.)
    1. Courts &wkey;>120 — Jurisdiction—Amount in CONTROVERSY.
    An action on a note and to foreclose a vendor’s lien securing it, in which a bank which had possession of the note and was wrongfully claiming to own it was made a party, was within the jurisdiction of the district court, though the note was for only $200.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436, 438.]
    2. Vendor and Purchaser <&wkey;279 — Foreclosure oe Lien — Parties.
    In an action on a note and to foreclose a vendor’s lien securing it, a bank, which had possession of the note and was wrongfully claiming to own it, was a proper party.
    [Ed. Note. — For other cases, see Vendor, and Purchaser, Cent. Dig. §§ 778-782.]
    3. Appeal and Error <&wkey;>907(3) — Presumptions to Support Jurisdiction.
    Where there is no statement of facts in the record, it will be presumed that everything which could have been legally proved in support of the judgment was so proved.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3673.]
    4. Appeal and Ebkor <§=>907(3) — Pbesump-tions to Support Jurisdiction.
    The absence of any statement of facts does not justify a presumption that facts wore proved which were not pleaded, though recited in thé judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3673.]
    5. Judgment <§=>250 — Oonfobmity to Pleadings and Pboof.
    Where in an action on a note, a hank having possession of the note and wrongfully claiming to own it was made a party, but there were no allegations that it had collected and appropriated any amount due on the note, a money j'udgment against it for the amount shown to have been so collected was erroneous, as evidence not pertinent to any issue raised by the pleadings cannot form the basis of a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by Jennie B. Harris and husband against the Buckholts State Bank and another. From a judgment for plaintiffs, the defendant named appeals.
    Reversed and remanded.
    Morrison & Lewis, of Cameron, for appellant. M. G. Cox, of Cameron, for appellees.
   JENKINS, J.

This action was brought by appellees, to recover of A. P. Hess on a note for $200, alleged to have been executed by said Hess in favor of appellees on November 8, 1911, together with 10 per cent, interest thereon, and 10 per cent, attorney’s fees. It was alleged that said note was given as part of the purchase money of a certain lot in the town of Buckholts, and that a vendor’s lien was retained in the deed executed to Hess for said lot, to secure the payment thereof. It was further alleged that the Buckholts State Bank was in possession of said note, claiming title thereto. Hess filed no answer. Appellant answered that it was the owner of said note, and had purchased the same from appellees for a valuable consideration and before maturity, and further alleged that if the note was the separate property of Jennie B. Harris, it was indorsed to appellant for a valuable consideration by both Harris and wife, and if not indorsed by Mrs. Harris, that her name was indorsed thereon by her husband, as her duly authorized agent, and that if he was not her agent to make such indorsement, appellant was entitled to judgment over against Harris for the amount of said note, interest, and attorney’s fees. Harris and wife by supplemental petition replied that said note had been indorsed by them to appellant as collateral security for a debt owing by Harris, which he had paid. The case was submitted to a j'ury on special Issues, as follows:

“First. Is the $200.00 vendor’s lien note sued on in the petition the property of the Buck-holts State Bank?” To which the jury answered, “No.”
“Second. Or was it merely placed as collateral for the payment of the debt of plaintiff? Answer: Placed as collateral only.
“Third. If you answer that the $200 vendor’s lien note was placed as collateral for the payment of a debt of plaintiff, then was the said debt of plaintiff ever paid? Answer: Tes.”

Upon this verdict the court rendered j’udgment as follows:

“ * ⅜ * Which findings and verdict are hereby adopted by the court that the plaintiffs, Jennie B. Harris and her husband, R. S. Harris, are the legal owners and holders of the $200 vendor’s lien note sued upon herein, dated November 8, 1911, due October 1, 1912, and the same hears 10 per cent, interest per annum from date until paid, and that the same was merely placed by them with the Buckholts State Bank as collateral to secure a debt of plaintiffs, and that such debt for which it was so placed as collateral has been fully paid off and discharged, and that such payment was made by R. S. Harris, and that the Buckholts State Bank, without knowledge or consent of plaintiffs, received and appropriated to its own use certain sums of money paid it by A. P. Hess, and has not applied said payments so made by said Hess to any indebtedness of said plaintiffs, and that such payments should be accounted for and paid to plaintiffs by said bank, which payments are as follows: Interest to 10/8/1912, which amounted to 10 per cent, on $200, principal of said note on said date, to the sunn of $18.33; interest paid to 10/1/1913, which amounted at 10 per cent, on $200, principal of said note from October 8, 1912, to October 1, 1913. to the sum of $19.60; interest to 10/8/1913, which amounted at 10 per cent, on $200, principal of said note from October 1, 1913, the sum of 38 cents; by cash, 2/4/1914, $50.00; and it further appearing to the court that said" respective sums aggregate the sum of $88.31, for which, with 6 per cent, per annum thereon from this date, plaintiff is entitled to judgment against said bank; and the plaintiff is further entitled to the possession of said note, and that said bank is not entitled thereto, and is not entitled to the relief sought by its cross bill.”

The court also rendered, judgment against Hess for the sum of $214.31, with 10 per cent, per annum thereon, from date of judgment, said sum including attorney’s fees. The court further found that said note was secured by vendor’s lien on the lot described in plaintiffs’ petition, and entered judgment foreclosing the same.

In addition to the matters above ’ stated, appellant excepted to the jurisdiction of the court on the ground that the note was for $200 only, and was therefore not within the jurisdiction of the district court. There is no merit in this contention. The suit being against Hess to foreclose a vendor’s lien, the district court had jurisdiction without reference to the amount involved, and, it being alleged that the note was in the possession of the bank, which was wrongfully claiming the same, it was a proper party to the suit.

Appellant assigned error as to that portion of the judgment which found it liable to plaintiffs in the sum of $88.31, upon the ground that such judgment is not supported by either the pleadings or the evidence. There is no statement of facts in the record, and we therefore presume that everything which could have been legally proven in support of the judgment was so proven, but there was nothing in the pleadings which would have justified any proof that the bank had collected and appropriated any amount due on said note. Therefore we must presume that no such evidence was given, notwithstanding the recitals in the judgment; or, what amounts to the same thing, if such proof was made, the court could not consider the same, for the reason that it was not pertinent to any issue raised by the pleadings. It is well settled that evidence not pertinent to any issue raised by the pleadings cannot

form the basis of a judgment. See Hall v. Jackson, 3 Tex. 305; Railway Co. v. Scott, 86 S. W. 1065; Hamilton v. Battle, Dallam, Dig. 576; Mims v. Mitchell, 1 Tex. 448; McGreal v. Wilson, 9 Tex. 426; Parker v. Beavers, 19 Tex. 407; Telegraph Co. v. Stracner, 152 S. W. 845; Osvald v. Williams, 169 S. W. 185; Railway Co. v. Brown, 173 S. W. 943; Nalls v. McGrill, 184 S. W. 275.

It is true that under a prayer for general relief, which plaintiffs’ petition contained, the court may grant any appropriate relief, though not specially prayed for; but relief cannot, be said to be appropriate which must be based upon facts as to which no issue was raised by the pleadings. Under the pleadings in this case judgment by default should have been rendered against Hess for the full amount of the note, principal, and interest, and no moneyed judgment should have been rendered against the appellant. If Hess had alleged that he had made payments to the bank, and that the bank was not authorized to receive such payments, he might have had judgment against the bank for the amount thus paid, or if appellees had alleged that the bank had received these payments from Hess without authority, they might have ratified such collection and had judgment against the bank for the amount received by it.

Eor the reason that the pleadings did not justify any moneyed judgment against appellant, the judgment of the trial court herein is reversed, and this cause is remanded.

Reversed and remanded.
      <&wkey;For Other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§E»For other cases see same topic and KBY-NTJMBER in all Key-Numbered Digests and Indexes


author: HAUL, J.

text:
    STEED v. WREN & BERRY.
    (No. 1160.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1917.)
    1.Evidence <©=>594^-Uncontbovebted Evidence.
    Where the only evidence offered by plaintiff on a material issue was the unimpeaehed testimony of defendant, which was directly opposed to plaintiff’s contention, judgment for plaintiff was improper, since plaintiff, having called defendant as a witness, could not insist he was unworthy of belief.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 2431.]
    2. Execution <§=>194(1) — Claim by Third Person — Burden of Proof.
    Where a third person claimed liquors levied on, and defendant testified that they belonged to claimant, plaintiff had tho burden of proving that property levied on belonged to defendant.
    [Ed. Note. — Eor other cases, see Execution, Cent. Dig. §§ 571, 572.]
    3. Execution <©=>196 — Claim by Third Person-Question for .Tury — Ownership.
    Where a third person claimed liquors levied on, the question of ownership, being -made one of fact by Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 7785, was for the jury.
    [Ed. Note. — Eor other cases, see Execution, Gent. Dig. § 576.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Action by Wren & Berry against Julius Kuehn. Judgment for plaintiff, and upon levy of attachment, I. H. Steed claimed title and, upon issues joined, plaintiff had judgment, and claimant appeals.
    Reversed and remanded.
    Nelson & Hunter, of Wichita Falls, for appellant. Weeks & Weeks, of Wichita Falls, for appellees.
   HAUL, J.

Wren & Berry, a firm, recovered a judgment in the county court of Wichita county, April 28, 1915, against Julius Kuehn, in the sum of $550, and on the 18th day of March, 1916, procured the issuance of an execution and directed the sheriff of Wichita county to levy upon a stock of intoxicating liquors, claimed by the appellant Steed, but alleged by appellees to be the property of their debtor, Julius Kuehn. In due time appellant Steed filed a claimant’s affidavit and bond and took possession of the liquors. When the issues .were made up appellees, among other things, alleged that the ownership of the property in controversy at the time of the levy was in Julius Kuehn, and was therefore subject to their execution, and was not and had never been the property of appellant Steed. Issues having been tendered, the cause came on for trial May 3, 1916, at which time appellees moved the court to require the appellant to assume the burden of proof, to which the appellant objected, and the court, before a jury had been impaneled to try the cause, over the objection of appellant, heard testimony upon the question as to who was in possession of the property at the time of the levy of the execution, and held that the burden of proof was on claimant. The return of the officer upon the writ did not disclose from whose possession the property was taken. Appellant reserved his bill of exception to the action of the court, insisting that it was a question of fact to be determined by the jury.

It is unnecessary to discuss all of the assignments presented in appellant’s brief. It appears from the evidence of appellant that he had purchased the property in controversy with his o.wn funds; had leased'a building from a Miss Stonecheiper, in which he was conducting a saloon, and that Julius Kuehn was one of his employes. When the court tried the issue as to who had possession of the property when the levy was made, Julius Kuehn was sworn and placed upon the stand by appellees. The substance of his testimony is that appellant owned the property absolutely, and that he (Kuehn) had no interest whatever in it other than as an employé of appellant; that appellant had left the premises about an hour before the sheriff made the levy. The witness further testified that he was working for Steed upon a salary of $25 per .week; that the lease contract was in the name of Steed, and that he was the real lessee of the property; that the license was issued to Steed upon a permit granted to Steed, and that all water and light bills were made out against Steed and paid by Mm out of his funds. After hearing this testimony and without further evidence the court placed the burden of proof upon the appellant,

This court said, in the case of Starkey v. H. O. Wooten Grocery Co., 143 S. W. 692, that where the only evidence offered by plaintiff on a material issue was the unim-peached testimony of defendant, who swore to facts diametrically opposed to plaintiff’s contention, a judgment for plaintiff was improper, since plaintiff, having called defendant as a witness, could not insist that he was unworthy of belief, and even if his testimony were eliminated there .would be a failure of proof. The facts of this case bring it within the rule announced there. The appellants placed Kuehn upon the stand, and while he was not claiming the property they were bound by his evidence, since there were no facts or circumstances contradicting his statement.

In the absence of any evidence whatever the burden of proof was upon appellees, who were the plaintiffs in the writ and were endeavoring to subject the property to the payment of their debt. This ruling of the court will require a reversal of the judgment. It was purely a question of fact under Vernon’s Sayles’ Civil Statutes, art. 7785, as to who had the possession of the property. Appellant and Kuehn testified that Kuehn was the agent and employé of appellant, and even though he had actual possession of the property, since he was the agent of Steed the possession was in law that of Steed. This being a question of fact, appellant was entitled to have it submitted to a jury. Hillboldt v. Waugh, 47 S. W. 829; Brown v. Lessing, 70 Tex. 544, 7 S. W. 783. The erroneous ruling of the court in placing the burden upon appellant has prevented a full development of the facts in the case, and other evidence will doubtless be introduced upon the question of the ownership of the property.

Because of the errors mentioned, the judgment is reversed, and the cause remanded.
      É=»For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    SCOTT et al. v. SHINE.
    (No. 8500.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 10, 1917.
    On Motion for Rehearing, March 31, 1917.)
    1. Municipal Coepoeations <&wkey;706(5) — Streets — Frightening Horse — Evidence— Sufjtciency.
    Evidence held, to sustain finding that a cotton gin was not constructed and operated, as to escape of steam from the exhaust pipe, as a person of ordinary prudence would have constructed it, so as to render the owner liable for injuries when a horse became frightened by the exhaust.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    2. Municipal Corporations &wkey;>706(5) — Streets — Frightening Horse — Evidence— SumoiENcr.
    Evidence held to sustain finding that a person of ordinary prudence would have anticipated that the exhaust from a gin would have frightened a horse under the circumstances under which plaintiff’s horse was frightened and she was injured.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    3. Municipal Corporations <&wkey;706(5) — Streets — Frightening Horse — Evidence— Sueeioie.nct.
    Evidence held to sustain finding that escape of steam from cotton gin exhaust pipe was reasonably calculated to frighten horses of ordinary gentleness and cause them, to run away when driven along the street.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.]
    4. Municipal Corporations <&wkey;706(8) —; Streets — Frightening Horse — Instruction — “Might.”
    In action for injuries when horse was frightened by steam exhaust, instruction on anticipation of accident that the method of construction and operation of a cotton gin “might” probably cause horses of ordinary gentleness to be frightened did not import mere possibility and was correct.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518.
    For other definitions, see Words and Phrases, First and Second Series, Might.]
    5. Trial <&wkey;350(6) — Issues—Trade Custom.
    Trade custom in constructing cotton gins being admissible on issue of negligence, but riot conclusive, it is not error to refuse submission of special issue whether defendant complied with such custom, where there was evidence that the gin could easily have been so constructed as to avoid the danger.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 830.]
    6. Damages c&wkey;221 — Measure oe Damages— Aggregate Finding.
    In the absence of request for separate findings of special damages pleaded, a requirement that the jury find the damages in the aggregate is not erroneous.
    [Ed. Note — For other cases, see Damages, Cent. Dig. §§ 563-566.]

      On Motion for Rehearing.
    7. Appeal and Error &wkey;>1170(9) — Reversal —Nature of Error.
    In view of rule 62a (149 S. W. x) error, if any', in disregarding a bill of exceptions to instructions requiring an aggregate finding of damages where the petition pleaded separate special damages was harmless, unless it was reasonably calculated to, and probably did, cause an improper judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543.]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Action by Mrs. H. T. Shine against Mrs. Elizabeth Scott and another, as executors of the will of Winfield Scott, deceased. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    I. W. Stephens, Miller & Miller, and Glover C. Johnson, all of Ft. Worth, and Thompson, Knight, Baker & Harris, of Dallas, for appellants. Robert Harrison, of Ft. Worth, Morrow & Morrow, of Hillsboro, and Charles L. Black, of Austin, for appellee.
   DUNKLIN, J.

Winfield Scott owned a cotton gin situated in the town of Itasca near the intersection of two public streets, one running east and west, and the other running north and south, the location of the gin being south of the street running east and west and east of the street running north and south. On September 17, 1910, Mrs. H. T. Shine was riding on the rear seat of a surrey drawn by a filly 2 ½ or 3 years old, which was driven by Miss Jessie Barnes, a young lady about 19 years of age, who sat on the front seat of the surrey with another young lady, Miss Kathleen Elmore, of about the same age. The surrey approached the intersection of the two streets from the north, and upon reaching such intersection turned east upon the street running east and west. About the time or immediately after said turn was made, the filly became frightened, wheeled, and ran west with the vehicle, throwing Mrs. Shine to the ground and injuring her. Mrs. Shine instituted this suit against Mrs. Elizabeth Scott and A. B. Robertson, independent executors of the last will and testament of Winfield Scott, deceased, to recover damages for the injuries so sustained by her, and from a judgment in her favor for the sum of $8,500, the defendants have prosecuted this appeal.

A pipe came out of the north wall of the gin house 16 feet above the ground, and extended horizontally and north to a distance of 18 inches from the north wall. This pipe was known as an exhaust pipe, through which steam from the boiler escaped into the air after being used for compressing cotton, and in her petition the plaintiff alleged that on the occasion of the accident,'and just as the surrey reached a point in said east and west street about opposite the gin, steam escaping from the exhaust pipe was emitted into and across the street with a loud and roaring noise, and that by reason of said emission of steam with its accompanying noise, the horse became frightened and ran away. It was further alleged that the horse was a “gentle family horse.”

After alleging the facts above mentioned and detailing the injuries sustained by the plaintiff, the petition contains the following:

“Plaintiff saysl that her said injuries are the proximate result of the negligence of the said Scott, his agents and servants; that they were negligent in maintaining said escape pipe so as to project out into the public street, and thus to emit steam and vapor into said street in a manner calculated to frighten horses and animals drawing vehicles along said street; that they were negligent in causing said steam and vapor to escape in such a manner as to cause unnecessary noise, and in such manner as to frighten the horse driven by the plaintiff; that they were negligent in not maintaining said escape pipe at some other and different place, so that the steam emitted therefrom would not go across said street, and so that said noise caused by the escape of said steam would not frighten horses and other animals passing along said street.”.

In their answer the defendants alleged specially that the gin was a lawful structure erected for the convenience of those desiring to have their cotton ginned; that the owner had a lawful right to maintain it at the place and in the manner it was erected and maintained; that the gin was first class and of modern construction, and equipped with the necessary appliances to do the work for which it had been built; that it was necessary in the operation of the gin to equip it with an exhaust pipe for the escape of steam into the air as quickly as possible; that the exhaust pipe was as short as a due regard for the safety of the plant would permit; that said exhaust pipe did not extend into or across any public street, as alleged by the plaintiff, but only a short distance beyond the walls of the gin, and that the escape of steam and vapor from the pipe situated as was the gin was not reasonably calculated to frighten horses of ordinarily gentle disposition; and that the owner of the gin could not reasonably have anticipated that any such result as plaintiff alleges would occur, and if any such injury did result to plaintiff as alleged, the same was not the proximate result of any negligence on the part of the owner of the gin. Defendants further alleged that if the horse became frightened, such fright was caused by the usual and ordinary operation of the gin without fault of the owner or its employés, and said gin was operated with reasonable care and in the manner in which cotton gins are usually operated, all of which facts were well known to the plaintiff at the time.

By supplemental petition plaintiff controverted the facts set out in the defendant’s answer, and in connection therewith pleaded further as follows:

“Plaintiff further says in this connection that, not only was it negligence to maintain and use said gin at the place and in the manner that such was being done, but that said gin_ as so maintained and used was in law a nuisance, threatening injury to those lawfully traveling the adjacent highway in vehicles drawn by horses.”

The case was submitted to the jury on special issues, which, together with the findings thereon, are as follows:

“(1) Was the Scott gin at Itasca at the time plaintiff is alleged to have been injured constructed and operated as to the escape of steam from the exhaust pipe iu such a manner as a person of ordinary prudence would have operated it? Answer: No.
“(2) In constructing- and operating the. Scott gin at Ttasca at and before the time plaintiff was injured, would a person of ordinary prudence have reasonably anticipated that the escape of steam from the press of said gin might probably cause horses of ordinary gentleness to take fright and run away when driven at the place where the horse in question was being driven when it became and ran away? Answer:
“(3) State whether or not the escape of steam from the exhaust pipo in pressing cotton at the Scott gin in Itasca at the time plaintiff is alleged to have been injured was reasonably calculated to frighten horses of ordinary gentleness and cause them, to run away when driven along' the street where the horse in question was being driven when it took fright and ran away. Answer: Yes.
“(4) What amount of damages, if any, do you find that the plaintiff has sustained? In determining the amount of damages you may take -into consideration the following matters only: Such doctors bills, if any, of reasonable amount, as she has paid on account of such injuries; the reasonable value of such time, if any, as she has lost in the past as a result of such injuries, and of such time, if any, as she will probably lose in the future as a result of such injuries; the physical pain, if any, and mental anguish, if any, that plaintiff has heretofore suffered as a result of her injuries, and the physical pain, if any, and the mental anguish, if any, that plaintiff will probably suffer in the future as a result of such injuries. On the special issues submitted to you herein you are instructed that the burden of proof is on plaintiff to prove by a preponderance of the evidence her contention with reference to said issues. You are the exclusive judges of the credibility of the witnesses, of the facts proven and of the weight of the evidence but you will receive the law from the court as given herein. Answer: Eight thousand and five hundred dollars ($8,500.00).”

The evidence conclusively established the following facts: The gin was erected on property owned by Winfield Scott; the north wall was as near as about 23 feet south of the street running east and west, and the west wall about 61 feet east from the street running north and south. The exhaust pipe was 1 inch in diameter, and through it was discharged steam from a cylinder & feet by 12 inches in diameter. This pipe came out of the north wall of the. gin, and at a distance of 18 inches from that wall extended 16 feet above the ground. It did not extend out into or across the street, as alleged by the plaintiff, but it was so pointed that the steam therefrom was emitted in the direction of the street running east and west. The noise and appearance of steam emitted from the pipe was the usual and customary noise and appearance of steam made in the operation of gins. The width of the street last mentioned was 50 feet, and at the time the filly became frightened she was north of the middle line of said street, or at a distance of at least 50 feet, and probably several feet farther, from (he exhaust pipe. The sound created by the exhaust of steam from the pipe was similar to that of an explosion, followed by a hissing noise. When the horse on the occasion in question started east from the street running north and south, the steam from the exhaust pipe came out suddenly, and in a manner, which is described by Miss Elmore, one of the young ladies in the surrey, and not controverted by any other testimony, as follows:

“It came out suddenly and made a loud noise. It was first like an explosion, followed by a little increase in volume, then dies away with a hissing noise. When the steam first came out the horse jumped, then as it increased the horse wheeled suddenly to the right, turned entirely around, and ran a little northwest.”

As a result the buggy was overturned and the occupants dragged thereunder for a short distance, and in that way Mrs. Shine was injured. When the horse first took fright, and before she wheeled in the opposite direction, the driver tapped her with the lines.

The evidence further shows without controversy that the gin was of modem pattern, and that its construction was in accordance with the most approved plans of construction, save and except that the testimony showed without conflict that the exhaust pipe could have been so turned and directed as to cause the waste steam to be discharged into an excavation in the ground, or on the opposite side of the building, rather than in the air 10 feet above the ground, and that by this method the noise of the exhaust to persons passing on the street running east and west would have been diminished, and that the steam would not have been projected in the direction of the street There was also testimony that at least one gin in that vicinity so constructed its exhaust pipe as to cause it to discharge the waste steam into an excavation in the ground. Vernon Millsap, a witness for the plaintiff, and the owner of the animal, testified without contradiction that the 'accident happened during the second season the gin was operated, and that during that time, and on probably as many as 50 occasions, he had driven the animal by this gin on the road running east and west while the gin was in operation and discharging steam from the exhaust pipo, and that the animal had never on any of those occasions taken fright at such exhaust of steam, although this witness did not testify as to whether or not the exhaust steam reached the street on any of those occasions. The ginning season usually began in August, and the accident happened September 17, 1910. No testimony was offered to show that any other horse had ever at any time been frightened by said exhaust of steam, although the street running east and west was a public street in the town of Itasca and in common use by the public. Several witnesses, who were qualified'by experience in handling horses and who were familiar with the noise and appearance of steam emanating from the exhaust pipe in question, testified that in their opinion the same would not frighten horses of ordinarily gentle dispositions, and no witness testified to a contrary opinion.

But Miss Jessie Barnes, who was driving the animal at the time, testified as follows:

“The horse was the property of my stepfather, Vernon Millsap, and was reliable ancl gentle and easy to handle. * ⅜ * There was a pipe extending just a "short distance from the building up near the top of that part of the building- near the street, with the open end of the pipe pointed towards the street, as I remember it. I do not know what this pipe was used for, but I do know that steam came from the same, in the form of an exhaust, at the time of the accident above mentioned. There was a large volume of steam emitted into the street, accompanied with a noise in the form of an explosion, increasing in noise for some time and then dying away. It was a loud noise. The steam settled in the street just in front of the horse we were driving. The steam and noise together caused the animal we were driving to turn suddenly around, turning the surrey over. It frightened the horse badly.”

W. B. Smith testified that he witnessed the accident from a point just north of the street running east and west at a distance of about 60 feet, or maybe a little further, from the ginhouse. He testified that:

Just as the surrey turned east upon the east and west street, “the press ran down, and the vapor or steam was pressed out, and, as that happened, the mare wheeled to run, and just as she wheeled to run, it escaped back, going up, and she seemed to get frightened worse than ever and ran. ⅜ * ⅜ There were two explosions at the time, one as the press went down and one as it came back. There is some noise connected with these explosions, and it is pretty loud.”

Vernon Millsap, the stepfather of Miss Jessie Barnes, testified that he had owned the animal for nearly a year prior to the accident, and that she had never shown any disposition to run away or to scare at objects. He further testified that he had observed the Scott gin in operation ever since its erection, and that the exhaust made a very loud report, which could be heard 200 or 300 yards away.

Plaintiff’s brother, G. H. Abernathy, testified that he was familiar with the location of the exhaust pipe in the Scott gin, and had had occasion to observe the escape of steam from other such exhaust pipes and the distance it would travel after leaving such a pipe and before its force was expended in the air, hut had never seen the Scott gin in operation, and according to the opinion testified to by him, if the wind was favorable, it was possible for steam from the exhaust pipe in the Scott gin to be exhausted with sufficient force to be thrown across the street running east and west.

But, according to the testimony of several other witnesses, the steam from the exhaust pipe could not reach the south boundary of said street, but its force would be expended at a distance from 12 to 15 feet from the end of the pipe. The weather was clear on the day of the accident, and the record is silent as to whether or not the wind was blowing, except that one witness testified that the “wind blew from the south pretty well all the time,” nor as to the condition of the atmosphere with respect to its humidity, further than as might possibly be inferred from the fact that the weather was clear.

By appropriate assignments appellants insist that the evidence was insufficient to support any of the findings of the jury in answer to issues Nos. 1, 2, and 3 ; the contention being made that the evidence conclusively showed that the gin was constructed according to the most approved plans, upon property owned by 'Winfield Scott, carefully operated and in the usual manner such gins were operated; that the distance of the exhaust pipe from the street was as recited above, and that the noise and appearance of steam therefrom were the usual, customary and necessary incidents to the operation of such gins, and not reasonably calculated to frighten horses of ordinary gentleness; and that a person of ordinary prudence would not reasonably have anticipated the fright and runaway of the animal in question under such circumstances.

The same contentions are made the predicate of another assignment of error to the refusal of the defendants’ request for an instructed verdict in their favor.

Appellants have cited many decisions in suits against railway companies for damages resulting from accidents caused by teams, while driven on a public highway, becoming frightened at the sound of whistles, or the escape of steam from their locomotives while in operation, in all of which it was held that no liability was shown. Some of those cases are O’Dair v. M., K. & T. Ry. Co., 14 Tex. Civ. App. 539, 38 S. W. 242; C., R. I. & T. Ry. Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; Hargis v. St. L., A. & T. Ry. Co., 75 Tex. 19, 12 S. W. 953; Omaha & R. V. Ry. Co. v. Brady, 39 Neb. 27, 57 N. W. 770; Lamb v. Old Colony Ry. Co., 140 Mass. 79, 2 N. E. 932, 54 Am. Rep. 449; G., C. & S. F. Ry. Co. v. Hord, 39 Tex. Civ. App. 319, 87 S. W. 848; Tex. Cen. R. R. Co. v. Harbison, 88 S. W. 414; G., H. & S. A. Ry. Co. v. Graham, 46 Tex. Civ. App. 98, 101 S. W. 846; 33 Cyc. 936, 937, 939. See, also, 1 R. C. L. bottom page 1207.

Without attempting to review those decisions at length, we think it sufficient to say that the rule announced therein, practically without exception, ⅛ that a railway company cannot be held liable for fright of teams from the sounding of locomotive whistles or the escape of steam therefrom, when the same are the usual and necessary incidents to the operation of trains, unless tie employés of tie company in ciarge of tie locomotive discover tie danger of frightening an animal in time to avoid an accident by refraining from giving such causes of alarm, and thereafter negligently failed to desist, and such failure is the proximate cause of the accident. A railway company is also liable for damages resulting from the fright of a team caused by tie blast of a whistle or the emission of steam, whenever such blast or emission of steam is unnecessary for the proper operation of the locomotive, and persons of ordinary prudence similarly situated would avoid such causes of fright.

Tie theory upon which a railway company is not liable for injuries proximately caused by an emission of steam and blast of whistles from its locomotives, whenever the same are necessary for tie operation of its road and are not in excess of such necessity and are not produced after peril of the traveler on a highway is discovered, is that such acts are made lawful by tie -statutes. That idea is expressed in St. L., S. F. & T. Ry. Co. v. Shaw, 99 Tex. 559, 92 S. W. 30, 6 L. R. A. (N. S.) 245, 122 Am. St. Rep. 663, which was a suit for damages for the depreciation in the value of property and also for noise and discomfort to plaintiff occasioned by the operation of tie railway company’s business and tie invasion of plaintiff’s home by noise, dust, odors, etc., resulting therefrom; and in that case tie Supreme Court, in denying the plaintiff tie right to recover for personal annoyance suffered, and after referring to the fact that the plaintiff had suffered annoyance and discomfort in her home, but that there was no evidence to show that in the operation of the trains more noise, dust, cinders, and odors were produced than would necessarily attend such operations properly conducted, nor that the number of trains, engines, and cars were greater than was necessary to properly perform the duties to the public, used the following language:

“Here the defendant, in the location of its right of way, its main track, its freight depot and such sidings and spurs as were necessary to the proper carrying on of its freight business and the discharge of its duties therein, did only that which the law authorized it to do. In other words, for the public good, its action in these regards, so long at least as it was only a reasonable exercise of the privileges granted, was made lawful; and any incidental damage resulting to members of the public, beyond that caused to their property, against which they are protected by the Constitution, is to be regarded as damnum absque injuria, which must be borne because the work which inflicts it is authorized by law for the general welfare.”

In the opinion rendered that decision was distinguished from such cases as Rainey v. R. R., T. & S. Ry. Co., 89 S. W. 768, 3 L. R. A. (N. S.) 590; Daniel v. F. W. & R. G. Ry. Co., 96 Tex. 327, 72 S. W. 578, which were decided upon the theory that as the acts of those companies complained of were not necessary to the enjoyment of the exercise of their charter powers, they might constitute nuisances which could be enjoined. To the same effect are Hargis v. St. L., A. & T. Ry., 75 Tex. 19, 12 S. W. 953, and Northern Transportation Co. v. City of Chicago, 99 U. S. 635, 25 L. Ed. 336.

Appellants also cite the case of District of Columbia v. Moulton, 182 U. S. 576, 21 Sup. Ct. 840, 45 D. Ed. 1237, which was a suit for damages for injuries resulting from the fright of an animal caused by a steam roller left by the agents of the District of Columbia by ethe side of a public highway.. The steam roller had been in use in repairing the highway, but had become disabled and had been left near the highway temporarily. The negligence alleged by the plaintiff consisted in keeping the steam roller on the street for a period of two days so as to be a public nuisance and dangerous to travelers passing along said street with their carriages and horses. The Supreme Court in .holding that the evidence was insufficient to warrant a recovery said:

“The steam roller in question had been brought to the place where the accident occurred for a lawful purpose, viz., that of performing a duty enjoined upon, the District to keep in repair the streets subject to its control. The use of an appliance such as a steam roller was a necessary means to a lawful end, a means essential to the performance of a duty imposed by law. It must therefore follow that if in the legitimate and proper use of such machine, with reasonable notice to the public of such use, an injury ⅛ occasioned to one of the public, such injury is damnum absque injuria.”

The court further held that the evidence showed that there was a necessity for a further use of the roller upon the street, and that the right to use the machine also included the right to keep it at the place where it was left for repairs for a reasonable length of time, and that the evidence conclusively showed that the time during which it was kept there was not unreasonable. So it will be seen in that case the District of Columbia, like a railway company, in repairing the street was performing a legal duty which it owed to the public.

Many decisions are cited by the appellee, including decisions in cases against railway companies and also against individuals and companies operating manufacturing and other like establishments, to sustain the judgment upon the issues discussed above, such as Sherman S. & S. Ry. Co. v. Bridges, 16 Tex. Civ. App. 64, 40 S. W. 536, Weatherford v. Lowery, 47 S. W. 34; Pecos & N. T. Ry. Co. v. Bowman, 78 S. W. 22; San Antonio Edison Co. v. Beyer, 24 Tex. Civ. App. 145, 57 S. W. 851; Ft. Wayne Coop. Co. v. Page, 170 Ind. 585, 84 N. E. 145, 23 L. R. A. (N. S.) 946, and note; Wolf v. Des Moines Elevator Co., 126 Iowa, 659, 98 N. W. 301, 102 N. W. 517; Knight v. Goodyear’s India Rubber Co., 38 Conn. 438, 9 Am. Rep. 406; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611; also Thompson on Negligence, vol. 1, §§ 1257, 1258.

In 1 R. C. L. bottom pages 1202 to 1206, is found a discussion of general principles with respect to the liability of owners of property abutting on a public highway for injuries resulting from the fright of animals driven upon the highway caused by the emission of steam, the blowing of whistles, etc., in the operation of machinery upon such abutting property, with numerous citations of authorities in support of the text. Among other authorities so cited is Cook v. Rice Hake Milling & Power Co., decided by the Supreme Court of Wisconsin, reported in 146 Wis. 535, 130 N. W. 953, 132 N. W. 346, 32 L. R. A. (N. S.) 1225, and in Ann. Cas. 1912C, 458, in connection with which latter report there is a note of numerous other decisions in cases of like character, in several of which as well as in the case to which the note is appended, it was held that the evidence was insufficient to support a finding of negligence authorizing a recovery. And the facts of some of those cases, at least, are quite similar to the case at bar; but in several other cases cited in the notes also involving facts of like character, a contrary conclusion was reached.

We shall not undertake to discuss those authorities at length. They are all based upon the same fundamental principles of the law of negligence upon which the present suit was made to hinge. Necessarily the facts of such cases differ, and the question, whether or not the facts relied on by the plaintiff in all such cases are sufficient to sustain a finding of negligence must be determined in the light of reason in connection with common experience.

After a careful consideration we have reached the conclusion that the undisputed facts, considered in connection with the evidence recited above, were sufficient to sustain the findings of the jury upon issues Nos. 1, 2, and 3, and hence, the assignments addressed to those findings and to the refusal by the court of appellant’s request for an instructed verdict are overruled, as are also other assignments presenting the contention that such findings of the jury are so contrary to the great weight of the evidence as to show manifest injustice.

Complaint is made of the second special issue submitted to the jury in using the word “might,” preceding the words, “probably cause horses of ordinary gentleness to take fright,” etc., and in refusing the submission of a requested issue in the same language of issue No. 2, given with the exception that the word “would” was used instead of the word “might," in the connection above noted. Substantially, the contention is that the word “might” imports a mere possibility, rather than a probability, of the happening of an accident of the character in question; that liability would not attach if such an injury was only possible, but that it would attach only in the event that an injury of that character would reasonably have been foreseen by a person of ordinary prudence, as expressed in the requested instruction.

In St. L. S. W. Ry. Co. v. Garber, 108 S. W. 742, in overruling an assignment to a charge that in estimating plaintiff’s damages the jury should take into consideration such physical pain and mental anguish as plaintiff “may reasonably and probably suffer in the future as a result” of the injury, on the ground, substantially, that it allowed damages for possible rather than probable future suffering, the court said:

“It is difficult to perceive any real or substantial difference between the expression ‘may reasonably and probably suffer’ and ‘will reasonably and probably suffer.’ ”

See, also, Garrett v. State, 49 Tex. Cr. R. 235, 91 S. W. 577, and several other decisions to the same effect noted in 3d Words and Phrases (2d Series) on pages 334, 335, and 382, among which are O’Keefe v. United Railways Co., St. Louis, 124 Mo. App. 613, 101 S. W. 1144, and several other Missouri decisions, and Louisville Ry. Co. v. Wellington, 137 Ky. 719, 126 S. W. 370, 128 S. W. 1077, in which it is held that the words “may” and “might” comprehend the idea of probability as well as the idea of possibility; and the words “may” and “might” are often used interchangeably in general discussions of the question of injuries as the result of negligence, for which one may be held liable, although the authorities here referred to had no reference to the question of proper instructions to a jury upon such an issue. See T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; St. Louis, E. M. F. Co. v. Dawson, 30 Tex. Civ. App. 261, 70 S. W. 450.

In the instruction criticized it will be noted that the words “probably cause,” etc., follow the word “might.” And we are of the opinion that, especially when used in that connection, it is not likely that the jury construed the charge in the sense suggested in the assignments, which are, accordingly, overruled.

There was no error in refusing to submit special issues requested by the defendants, requiring findings by the jury whether or not the Scott gin was constructed and operated, so far as the escape of steam in pressing cotton is concerned, in the usual and customary manner, and whether or not the noise and appearance of steam escaping from the exhaust pipe at the time of plaintiff’s in-, jury were usual and necessary incidents attending the operation of cotton gins at that time. We understand the law to be that the custom of persons engaged in the same business to perform work in a certain manner is admissible upon the issue of negligence, but it is not controlling; and it was shown without controversy that it was not necessary to the operation of the gin that the exhaust pipe should be constructed and placed as was the one in question, but that the waste steam could have been discharged into an excavation in the ground or on the opposite side of the gin, without any serious impediment to the operations of the gin, and without any appreciable increase of expense, and that thereby the dangers from the noise and appearance of the steam would, to say the least, have been greatly diminished. Furthermore, the issues, Nos. 1, 2, and 3, submitted to the .jury correctly covered the question of negligence in the construction and operation of the gin.

Error has been assigned to the fourth special issue submitted to the jury upon the measure of damages, in that the jury was required to find the amount of damages in the aggregate, without making a specific finding upon each element of damages mentioned in that instruction. Appellants filed no request for an instruction to the jury to separate their findings so as to show the amount allowed on each particular issue of damages, and in the absence of such request, no reversible error is shown in the instruction given. Heiligmann v. Rose, 81 Tex. 222, 16 S. W. 931, 13 L. R. A. 272, 26 Am. St. Rep. 804, and other decisions there cited.

Nor can we say that, in the light of all the evidence with respect to the injuries sustained by the plaintiff, the verdict is so large as to show prejudice or bias on the part of the jury requiring a reversal of the judgment, as insisted in another assignment. •

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.

On Motion for Rehearing.

By bill of exception taken by appellants to the paragraph of the court’s charge submitting the issue of the measure of plaintiff’s damages, the contention was made that the court should require a separate finding by the jury on each element of damages mentioned in the charge, and that the charge was erroneous, in that it required a finding by the jury of all such damages in an aggregate sum; attention being called in the bill of exception to the fact that in plaintiff’s petition she had claimed $10,000 damages for irhysieal pain and mental anguish; $4,750 for lost time and inability to work, and $250 for doctor’s bills. In said objection to the charge appellants insisted that the jury should be instructed to make separate findings upon the elements of damages so itemized by the plaintiff.

Appellants now insist that as the attention of the trial judge was thus specially directed to those matters in accordance with the present statutes governing in such cases, the old rule of decisions in force before the adoption of such statutes, requiring requested instructions calling the court’s attention to such an omission in his charge, does not now obtain. And appellants insist, further, that the conclusion reached by us is in conflict with such decisions as H. & T. C. Ry. Co. v. Buchanan, 38 Tex. Civ. App. 165, 84 S. W. 1073, Q. A. & P. Ry. Co. v. Galloway, 154 S. W. 653, K. C., M. & O. Ry. Co. v. Worsham, 149 S. W. 755, to the effect, that a total failure to charge on the measure of damages, although merely an omission of duty on the part of the court, is reversible error, even in the absence of a requested instruction upon that issue. Even though it could be said that appellants are correct in their contention that under such circumstances a requested instruction is not necessary, yet the error, if any, would not require a reversal of the judgment, unless it appears that it was reasonably calculated to cause, and probably did cause, an improper judgment. Rule 62a, 149 S. W. x. The total amount of damages allowed by the jury was $8,500, and as that was far less than the aggregate amount claimed in the plaintiff’s petition, it cannot be said that the jury allowed moi’e than the aggregate amount sued for. Nor have appellants pointed out any testimony to show that the jury probably allowed an excessive amount upon any particular element of damages submitted, except to say that the amount that could have been allowed under the evidence for disability to labor, viewed in its most favorable aspect, would have been negligible only, and that the doctor’s bill incurred in treatment of plaintiff for her injuries was less than $100, leaving the only item for which plaintiff reasonably could have been allowed damages that of physical and mental suffering. Plaintiff claimed $10,000 for the item of physical and mental suffering alone, and the evidence would justify a finding of great physical suffering sustained by her extending over a long period of time. In view of the entire record, we are unable to say that the omission in the charge complained of, if error at all, probably caused the rendition of an improper judgment.

Another contention is made that there was fundamental error in the judgment, in view of the absence of any specific finding of negligence which was the proximate cause of plaintiff’s injuries. We do not think there is any merit in this contention, as the findings of the jury were essentially to that effect, as shown by the issues submitted and the findings thereon contained in our original opinion.

Accordingly, the motion for rehearing is overruled..
      ©=2Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes