text:
    J. F. SIENSHEIMER & CO. v. MARYLAND MOTOR CAR INS. CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.
    Rehearing Denied May 21, 1913.)
    1. Appeal and Error (§ 743) — Assisnments op Error — Reference to Motion poe New Trial.
    Assignments of error not referring to the part of the motion for new trial wherein the error assigned is complained of, as required by rule 25 (142 S. W. xii), cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dee. Dig. § 743.]
    2. Courts (§ 169) — County Courts — Jurisdiction— Amount in Conteoveesy — “Interest.”
    Under Const, art. 5, § 16, fixing the maximum amount for which suit may be brought in the county courts at $1,000 exclusive of interest, the term “interest” means interest eo nom-ine, and not interest allowed as damages in actions for tort.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 405; Dee. Dig. § 169.

    For other definitions, see Words and Phrases, vol. 4, pp. 3706-3709.]
    3. Courts (§ 169) — County Courts — Jurisdiction — Amount in Controversy — Determination on Pleadings.
    While the county court, under Const, art. 5, § 16, fixing the maximum amount for which suit may be brought therein at $1,000, exclusive of interest, would be without jurisdiction where the damages claimed for a tort, with the interest thereon, exceeded $1,000 at the time the suit was filed, or under an amended petition taking the place of the original and setting up no new cause of action, it would not lose jurisdiction by reason of the fact that the interest accumulating subsequent to the filing of suit caused the aggregate amount to exceed $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec: Dig. § 169.]
    4. Courts (§ 92) — Rules of Decision — “Dictum. ’
    “Dictum” is defined to be an opinion expressed by the court which, not being necessarily involved in the case, lacks the force of an adjudication.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dee. Dig. § 92.

    For other definitions, see Words and Phrases, vol. 3, pp. 2051, 2052.]
    5. Courts (§ 169) — Jurisdiction — Amount in Controversy — When Determined.
    The jurisdiction of the county court under Const, art. 5, § 16, fixing the maximum jurisdiction at $1,000 exclusive of interest, is determined by the amount in controversy at the time the court is first called upon to exercise jurisdiction, which in the trial court is the amount claimed at the time suit is filed.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    6. Appeal and Error (§ 47) — Appellate Jurisdiction — Amount in Controversy.
    In an appellate court the amount in controversy as determining its jurisdiction is the amount for which judgment could have been rendered in the judgment appealed from.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 202-227; Dec. Dig. § 47.]
    Appeal from Hays County Court; J. B. Wilson, Judge.
    Action by the Maryland Motor Car Insurance Company and others against J. F. Siens-heimer & Company. Judgment-for plaintiffs, and defendant appeals.
    Affirmed.
    O. T. Brown, of San Marcos, and Kleberg & Neethe, of Galveston, for appellant. Barber & McKie, T. C. Johnson, Jr., and T. J. Saunders, all of San Marcos, for appellees.

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

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

   JENKINS, J.

1. Appellees object to the consideration of appellants’ assignments of error for the reason that they do not comply with rule 25 (142 S. W. xii), in that they do not refer to that portion of appellants’ motion for a new trial wherein the error assigned is complained of. This objection must be sustained. Said assignments do not refer to the motion for a new trial.

2. Appellants insist that fundamental error was committed against them for the reason that the court was without jurisdiction to try this case, or to render the judgment herein rendered. The facts upon which this contention is based are these: On July 10, 1911, appellee the Maryland Motor Car Insurance Company brought suit against appellants for $950 damages for failure to cancel a certain policy as agents of s&id company, and for 6 per cent, interest from June 11, 1911, the date when the cause of action is alleged to have accrued. On August 6, 1912, plaintiffs filed an amended petition, pleading the same cause of action, and alleging, as in original petition, that it had been damaged by reason of the acts of appellants in the sum of $950, and praying for judgment for that amount, together with 6 per cent, interest from said 11th day of June, 1911. The ease was tried on said 6th day of August, 1912, and judgment was rendered for plaintiff for $950, with interest from June 6, 1911. It will thus be seen that at the time this suit was filed the principal and interest claimed was less than $1,000, and that at the time such suit was tried the accrued interest on said $950 had increased the amount then due to more than $1,000. Was the county court, by reason of this fact, deprived of jurisdiction to try this case, and, if not, could it render judgment for an amount in excess of $1,000?

3. Article 5, § 16, of the Constitution of this state, fixes the maximum amount for which suit may be brought in the county court at $1,000, exclusive of interest. It is well settled in this state that “interest,” as used in this article of the Constitution, means interest eo nomine, and not interest allowed as damages in actions of tort. Railway Co. v. Faulkner, 118 S. W. 748; Baker v. Smelser, 88 Tex. 26, 29 S. W. 378, 33 L. R. A. 163; Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1055; Railway Co. v. Hunt, 38 Tex. Civ. App. 460, 85 S. W. 1168; Railway Co. v. Everett, 95 S. W. 1085; Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Grocer Co. v. Railway Co., 142 S. W. 624; Railway Co. v. Rayzor, 125 S. W. 619.

4. But while it is true that if the amount claimed as damages for a tort, together with the interest thereon, exceeds $1,-000 at the time the suit is filed, the county court would be without jurisdiction to try the case (Railway Co. v. Rayzor, supra), it is equally true that, if such amount did not exceed $1,000 when the suit was filed, the county court at that time would have jurisdiction. Would it lose jurisdiction by reason of the fact that the interest accumulating subsequent to the filing the suit caused the aggregate amount recoverable to exceed $1,000?

This question must be answered in the negative. Railway Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806; Railway Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 475; Railway Co. v. Dolan, 84 S. W. 393. In so far as it affects the jurisdiction of the court to render judgment in the case, it is immaterial that the principal and accumulated interest recoverable as damages exceeded the jurisdiction of the court at the time of filing the amended petition upon which the ease was tried. “For most purposes an amended petition, which sets up no new cause of action, takes the place of the original petition, and relates back to tile time of the institution of the suit. ^ * * The claim which it asserts is to be regarded as if asserted when the suit was brought. The question as to the amount put in controversy in this case by the plaintiffs pleadings must therefore be determined as if it arose upon the original petition. Thus tested, no more was claimed than the court had jurisdiction to adjudge.” Railway Co. v. Underwood, supra.

5. In the cases last above cited, it is intimated that, while the court would retain jurisdiction, notwithstanding the fact that by lapse of time since the filing of the suit the accumulated interest may have increased the amount in controversy beyond the jurisdiction of the court, as to the amount for which suit may be brought in such court, still the judgment which the court could render in such case could not exceed the amount fixed by law for which suit could be brought in such court. We say “intimated” and not decided, because the expressions on this subject to be found in said opinions are dicta. Mr. Chief Justice Brown, in an able and well-considered opinion in the recent case of Grigsby v. Reib, 153 S. W. 1126, says: “ ‘Dictum’ is defined to be ‘an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication.’ ”

In Railway Co. v. Barnett, supra, the assignment of error was not that the county court erred in rendering judgment for an amount in excess of $1,000, but that “the trial court erred in rendering any judgment whatever (italics ours) in this case, for the reason that said court had no jurisdiction over the subject-matter in this: The plaintiff in his petition seeks to and did in fact recover in this suit the sum of $960, with legal interest thereon from August 28, 1898,” which amount at the time of the rendition of the judgment exceeded $1,000. This assignment was overruled in the following language: “The suit was filed at a time when 6 per cent, interest on $960 would not amount to $1,000. Consequently the court had jurisdiction.” What was said in a subsequent portion of the opinion about amending the petition upon a subsequent trial, “not being necessarily involved in the case, lacks the force of an adjudication.” In Railway Co. v. Dolan, supra, the judgment of the county court was for only $300 and interest, and the court was not called upon to say what would have been the effect had the judgment exceeded $1,000. In Rotan Grocery Co. v. Railway Co., supra, this court called express attention to the fact that this point was not involved in that case.

6. The distinction referred to by Mr. Associate Justice Williams in Railway Co. v. Underwood, supra, between jurisdiction for the purpose of appeal and jurisdiction a quo, should be kept in mind. This distinction will harmonize the cases hereinbefore cited with the decisions in the cases of Railway Co. v. Fromme and Railway Co. v. Faulkner, supra, and Railway Co. v. Crenshaw, 51 Tex. Civ. App. 198, 112 S. W. 118, and Railway Co. v. Hunt, 38 Tex. Civ. App. 460, 85 S. W. 1168. In other words, jurisdiction, in so far as amount is concerned, is determined by the amount in controversy at the time the court is first called upon to exercise jurisdiction. This in a trial court is the amount claimed at the time suit is filed; in an appellate court it is the amount for which judgment could have been rendered in the judgment appealed from.

7. In the instant case we are directly called upon to decide the issue as to whether when a court has obtained jurisdiction of a cause, by reason of the amount involved when such suit is brought, and is not being deprived of such jurisdiction by reason of the fact that, subsequent to the time of filing such suit and prior to the trial thereof, accummulated interest has increased the amount for which judgment may be rendered beyond the amount for which suit could originally be brought in said court, is such court limited, in rendering judgment to the amount for which such suit could have been originally brought? We think not.

It seems to us that the logic of the matter is, either that the court, by reason of such accumulated interest, would be deprived of all jurisdiction over the subject-matter, or it would have jurisdiction to render a proper judgment in the case, which would be the amount, found to be due at the time of the trial. The courts of the country are open to its citizens, and they are invited to enter the same for the redress of their wrongs, being forbidden by law to enforce their rights by their own strong arms. A. converts to his own use 198 bushels of wheat belonging to B., worth in the market $1 per bushel. B. brings suit in the justice court, the only court in which such suit could be brought. The case is continued, without B.’s fault, for three months. The case is called for trial, and A. objects to the jurisdiction of the court because the legal interest accruing since the filing of the suit has increased the amount due beyond $200. It would be absurd to say that B. must dismiss his suit, pay the costs, and bring suit in another court, in which he could not have brought suit at the time his right to appeal to the courts accrued. It seems to us to be equally unreasonable to say that he may have judgment for $200, but must lose the remainder that is justly due him, or, in violation of the spirit of the law which abhors a multiplicity of suits, be forced to bring another suit in .the same court for the remainder due him on the same transaction, between the same parties, and to recover which he must adduce the same evidence as in the former case.

Neither our Constitution (article 5, § 16), nor our statute (articles 1763 and 1764, R. S. 1911) fix the jurisdiction of tlie county court by the amount for which judgment may be rendered in such court, but by “the amount in controversy,” which, as we have seen from the authorities hereinbefore cited, means the amount claimed at the time the suit is filed. A court, having obtained jurisdiction of a cause, retains such jurisdiction for the purpose of rendering whatever judgment will meet the demands of justice under the allegations of the original petition, or such amended petition as does not enlarge the cause of action. An amended petition wherein judgment is ashed for the same amount and upon the same cause of action claimed in the original petition, with legal interest thereon to the date of trial, does not enlarge the cause of action, as such interest would have been recoverable without such amended petition.

8. The appellee suggests that, if we should hold that the judgment was erroneous in so far as it is for an amount in excess of $1,-000, we reform it and render judgment for that amount, or, if we should decline to do this, it offers to remit the amount in excess of $1,000, should it be required so to do. Holding, as we do, that no error was committed in this regard, we decline to reform said judgment or to require appellee to make such remittitur.

For the reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    HEARD v. HEARD.
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1913.)
    Deeds (§ 211) — 'Validity—Misbepresenta-TIONS BY GRANTEE — EVIDENCE.
    Evidence of defendant, _ in an action by a father to cancel a deed gift to his son because of misrepresentations as to the amount of land conveyed, held! to sustain the finding that there were no misrepresentations, even conceding that the burden was on the son to produce a preponderance of the evidence.
    [Ed.' Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dee. Dig. § 211.]
    Appeal from District Court, Morris County ; P. A. Turner, Judge.
    Action by Joe A. Heard against C. D. Heard. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Henderson & Bolin, of Daingerfield, and Mahaffey, Thomas & Hughes, of Texarkana, for appellant. Smelser & Vaughan, of Tex-arkana, for appellee.

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

   HODGES, J.

Appellant is the father of the appellee, and instituted this suit for the purpose of canceling a deed which some years before he had executed and delivered to his son, conveying 36 acres of land. The petition alleges that the appellant was old and infirm and unable to attend to his business affairs; that the appellee represented to him that he wanted a deed of gift to 10 acres of land lying off the west side of a larger tract then owned by the appellant; that he instructed his son to prepare the deed and he would sign it; that afterwards the appellee came to him with the deed, stating that it was for 8 or 10 acres of land off the west side of the tract referred to; that as a matter of fact the deed conveyed 36 acres of land, much more than was understood between the parties that it should contain; that the appellant, relying upon the statement of his son, signed the deed and subsequently acknowledged it before a notary public; that some years afterwards he discovered the fraud and demanded a re-conveyance of the property, and this was refused. The case was tried before the court without a jury and resulted in a judgment in favor of the defendant below.

There is but one assignment of error presented, and that is based upon the contention that the evidence is insufficient to support the judgment rendered.- The appellant testified that in 1906 his Son, the appellee, approached him for the purpose of buying 8 or 10 acres of land in a tract owned by him in Morris county near the town of Naples; that he told his son that he would not sell him any land but would give him that amount, and instructed him to have the land surveyed and a deed prepared for that purpose. Subsequently a surveyor was procured, and the appellant, the appellee, and his two brothers, accompanied by the surveyor, repaired to the tract of land and made the survey from which the field notes were prepared. One of the brothers carried the chain. The appellant testifies that, while he was on the ground and saw them surveying, he did not personally known how far they ran in any of the directions; that he paid no attention to the quantity of land they were surveying. He further testified that when he executed the deed he thought it contained a description of not more than 8 or 10 acres. He admitted that when the appellee presented the deed for signature, which seems to have been prepared some years after the survey, the latter did not tell him anything about how many acres it contained, but merely stated that it was for that little piece of ground he had agreed to give him. Appellant discovered some years afterwards that the deed conveyed 36 acres, and then made a demand for its reconveyance. The appellee testified that in 1904, two years prior to the date fixed by his father, he approached the latter for the purpose of buying some land out of the tract referred to; that he did not tell his father how many acres he wanted, but simply stated that he wanted a small piece of land off of the west side of the larger tract; that his father told him he would not sell liim the land, bnt would give it to Mm; that notMng was said about the quantity of land to be conveyed; that afterwards he had the land surveyed, when his father and two brothers were present; the surveyor ran two sides of the tract, and the field notes were prepared in accordance therewith; that Ms mother was living at the time, and he was living with Ms father and mother; that some time afterwards both his father and mother signed the deed, but Ms mother died before the deed was acknowledged; that his father subsequently acknowledged the deed and returned it to Mm; that he made no representation to his father at any time as to the quantity of land contained in the deed.

If the appellee’s testimony be true, there was no fraud perpetrated upon the appellant in procuring his signature to the deed. There is notMng in the evidence to show that appellant was incapable of reading the deed and understanding its contents, or that the appellee imposed upon Mm in any way to prevent Ms examining the deed. Presumably he had full opportunity to do so. At the time the appellee says the deed was executed the mother was living; and, according to the father’s admissions, Ms son was not at that time in the general management of his business. The testimony of the appellee further shows that soon after the land was surveyed he put improvements upon it which aggregated in value $600. There is a dispute between him and his father as to the correctness of this valuation, but the court had a right to accept as true the testimony of the appellee. We may concede the correctness of appellant’s proposition that by reason of the confidential relations sub.sisting between the appellant and the ap-pellee the latter had the burden of showing by a preponderance of the evidence that the transaction was free from fraud. Still we cannot say as a matter of law that this burden has not been discharged. The court had a right to pass upon the credibility of the witnesses and to determine the weight that should be given their testimony. We cannot say that his conclusions of law are without support.

TJie judgment is affirmed.


text:
    KEELING & FIELD v. WALTER CONNALLY & CO.
    (Court of Civil Appeals of Texas. Texarkana.
    April 24, 1913.)
    1. Justices oe the Peace (§§ 73, 74) — Plea oe Privilege — Waiver oe Objections. Overruling of a plea of privilege interposed by defendant in justice’s court is waived by his subsequent filing a cross-action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ 73, 74.*]
    2. Payment (§ 82) — Prepayment oe Freight by Seller — Reimbursement by Buyer.
    A seller who prepays freight may recover the same from the. buyer contracting' to pay the freight, and the payment is not voluntary.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 254-266; Dee. Dig. § 82.]
    3. Carriers - (§ 194) — Liability for Fkeighí Charges.
    In. the absence of an agreement to the contrary, a consignor is generally responsible for the freight charges.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by Walter Connally & Company against Keeling & Field. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Gregg & Brown, of Palestine, for appellants. Lasseter & Mcllwaine, of Tyler, for appellee.

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

   HODGES, J.

The appellee sued the appellants in the justice court of precinct No. 1 of Smith county, claiming a balance of $175.-92 alleged to be due on an open account. The items forming the account are made up principally of freight charges prepaid on machinery sold and delivered to the appellants by the appellee. The testimony shows that in March, 1911, the appellants purchased from the appellee a steam boiler and engine and some gin machinery. Among other provisions of the contract, it was stipulated that the appellants were to pay all the freight charges from the factory. The goods were shipped and received, the appellee prepaying the freight to point of destination. Upon demand being made for reimbursement, appellants refused payment, claiming that part of the machinery was secondhand. When this suit was filed in the justice court in Smith county, appellants presented their plea of privilege, claiming to be residents of Anderson county, Tex. The justice of the peace overruled that plea on the 1st day of July, 1912, and the case was continued till the August term of the justice court, at which time the appellants filed a plea in re-convention claiming damages against the ap-pellee in the sum of $100 on account of the inferior quality of a portion of the machinery purchased. A trial in both the justice and county courts resulted in a judgment for appellee in the sum of $175 and against the appellants on their counterclaim.

The first error assigned attacks the refusal of the court to sustain the plea of privilege. Whatever merit there may have been in that plea when originally presented in the justice court was waived by the cross-action thereafter filed by the appellants. Carver Bros. v. Merrett et al., 155 S. W. 633, recently decided by this court; Ramsey v. Cook, 151 S. W. 346; Thorndale v. Evens & Lee, 146 S. W. 1053; Kolp v. Shrader, 131 S. W. 860.

It is also urged that the judgment is unsupported by the evidence because the facts show that appellee was under no legal obligation to pay this freight; that it was a mere volunteer, and is not now entitled to claim reimbursement. The written contract offered in evidence shows that appellants agreed with the appellee to receive the goods “on arrival and pay freight charges on same.” A portion of the freight had been paid on the machinery then on hand in Tyler before the contract was made, and was charged to appellants under the terms of the contract. The balance of the freight was prepaid to Tucker, the destination of the goods, under the erroneous impression that Tucker was a prepay station. This evidence does not bring this case within the rule of what is termed a “voluntary payment” for which no reimbursement can be claimed. Appellants contracted with the appellee to pay the freight charges. There was no agreement that these charges should be paid to the railway company, or to any particular party. Appellants never owed the debt to the railway company, for the payment was made in advance of the transportation service. We see no reason why the shipper who prepays freight should not be allowed reimbursement from the consignee when the latter has obligated himself to pay such expenses. Payment of the freight may be demanded by the carrier in advance, and, if so, there is no reason why the consignor may not pay it in advance without demand. In the absence of some agreement with the carrier to the contrary, the consignor is generally held responsible for the transportation charges. Railway Co. v. Box, etc., Co., 48 Ind. App. 647, 94 N. E. 906; Railway Co. v. Lumber Co., 75 N. J. Law, 878, 69 Atl. 168; 2 Hutchison on Carriers, § 799; 6 Cyc. p. 500.

The judgment is affirmed.


text:
    BRYSON et al. v. MOORE.
    (Court of Civil Appeals of Texas. Texarkana.
    April 17, 1913.
    Rehearing Denied May 8, 1913.)
    1. Master and Servant (§ 218) — Injury to Servant — Minors—Assumed Risk.
    It is not enough to establish assumption of risk, as matter of law, by an inexperienced boy less than 17 years old, who just after being put to work, without warning and instruction, removing from a machine thin strips of board cut by it, had his fingers cut off by it, that he knew if he got his hand under the knife it would be cut, but it is also necessary to show that he understood the probability of getting it under there while performing his labors.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.]
    2. Trial (§ 244) — Instructions — Undue Emphasis.
    It was not error to refuse to give a special charge on contributory negligence, where after the general charge on the subject which had been given the giving of the special charge in the form requested would place undue emphasis on that defense.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    3. Trial (§ 253) — Injury to Servant — Contributory Negligence — Instructions Ignoring Issues.
    The requested instruction, in an action for injury to an employé assigned to the duty of taking boards from a cutting machine, that he could not recover if he put his hand under the knife, and at the time he did so he was not engaged in his work of taking and off-bearing boards from the machine, is objectionable as ignoring the issue whether or not he negligently or intentionally put his hand under the knife;the servant’s getting his fingers cut off in some unexplained way while not actually engaged in the work “of taking and off-bearing boards” from the machine not being per se contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Master and Servant (§ 293) — Injury to Servant — Failure to Warn and Instruct —Instructions.
    The requested instruction, in an action by a young and inexperienced employé, whose fingers were cut off by a clipping machine, from which he was removing the boards cut by it, that any negligence of the master in not warning or instructing him as to the danger was not the proximate cause of the injury if “it appears” from the evidence that he was “aware” of the danger is bad; as, if he had not been properly instructed, the jury must also believe from the evidence that he appreciated the extent of the danger and understood how to avoid it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148 — 1156, 1158-1160; Dec. Dig. § 293.]
    5. Trial (§ 192) — Instructions — Assumption oe Fact.
    A charge may assume a fact which the evidence shows without contradiction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    Appeal from District Court, Hopkins County; R. L. Porter, Judge.
    Action by Tom Moore, by next friend, against W. L. Bryson and others. Judgment for plaintiff. Defendants appeal.
    Affirmed.
    Glass, Estes, King & Burford, of Texar-kana, and C. E. Sheppard, of Sulphur Springs, for appellants. Connor & James, of Sulphur Springs, for appellee.

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

   HODGES, J.

H. G. York, as the next friend of Tom Moore, a minor, filed this suit in the court below, for recovery of damages resulting from personal injuries received by the minor while employed in a box factory owned and operated by the appellants. It is alleged, in substance, that Tom Moore was employed and put to work about dangerous machinery, that he was a youth under 21 years of age, of immature judgment, without experience, and ignorant of how to avoid the dangers to which he was exposed, and that appellants, knowing that fact, failed to instruct or warn him as to how to perform his duties without injury. Appellants answered by general denial and by pleas of assumed risk and contributory negligence generally. A trial before a jury resulted in a verdict for the appellee. The failure to properly wrarn and instruct the appellee was the only ground of negligence submitted as a basis of recovery.

The first error assigned complains of the refusal of the court to give a peremptory instruction in favor of the defendants below. It is contended that the evidence showed that the risk was one assumed by Moore, and that the court should have so held as a matter of law. The testimony shows that Tom Moore was in July, 1912, employed by the appellants to work in their box and crate factory in Sulphur Springs. He was at the time 16 years and 11 months old, and was without any previous experience in that class of work. It seems that the principal part of his life had been spent on a farm. There was nothing in the evidence to indicate that he was more than a boy of average intelligence. Prior to his employment by the appellants he had lived in the town of Sulphur Springs about two years; he had worked one day for a railroad company, and some time for the telegraph company. When first employed by appellants his duty was to stack slats in a freight car. After pursuing this line of work for a few days he was then transferred to another department and put to work at what he calls the “veneering machine,” or clipper. He had been engaged in that particular employment about an hour when three of his fingers were cut off by the knife of that machine. As described in the evidence this machine is constructed with a table, or platform, on which is fixed a large knife, or blade, about 56 inches long, which cuts into slats material automatically fed from the opposite side to that on which Moore stood while at work. This knife is raised and lowered by machinery, and is so adjusted as to cut the material into narrow strips about 4 inches in width. The material seems to have been fed through in two distinct lines, one on each side of the platform, leaving a space of about 5 or 6 inches of the blade in the center which was not used in cutting. It was Moore’s duty to remove the slats from the machine after they were cut. He thus testifies as to how he was injured: “There is nothing in between the ends of these pieces, but there is a space of several inches there. I don’t know how many inches. This space is — I suppose it is something like 8 or 10 inches. While I am at work the knife is perfectly visible, and I cannot help but see it. There are several inches up and down besides the length of the blade that is visible. There are something like 4 or 5 inches of that blade that is visible the whole length of the blade. Of course you see it in off-bearing. The slats are, two or three, piled up on one another and cuts two or three at a time, probably four or five piled up that way. Instead of there being one piece there will be something like four or five pieces, one piled on top of the other. The automatic feeder pushes it under the knife, and when the knife comes down it cuts through the whole thickness. If there are five there it cuts off five little boards. I could see that it comes down with enough force to cut through the different layers and cuts them all smooth. When the knife comes down and cuts them off it then goes up, and that pushes along until it goes back to the right distance and then comes down again and cuts them off. When I got my fingers cut off I was reaching under the boards with my left hand and taking them off. * * * I had only been at work an hour, I think, taking the slats away. I did not put my hand under there purposely. There was nothing under there to keep my hand from going next to the knife. No one connected with the institution told me anything about the work; no one told me about its being dangerous, nor did any one tell me how to avoid getting my hand under there. I was not thinking about getting my hand under. I knowed it would cut my fingers off if I got it under there. When the last board is cut it remains until the next is cut off. * * * No one gave me instructions or explanation or warning as to whether I should take the last board next to the knife off or not.” The witness further testified, in substance, that he knew the work was dangerous, and knew the blade would cut his fingers off if he put them under it; that he did not deliberately stick his hand under the knife, and did not know that he was liable to get his hand under it while performing his work.

There was testimony tending to show that the appellee could not have been injured in the manner described by him. Witnesses for the appellants stated that the feeding madhine was automatic; that when the knife was raised more material was forced under it, thus making it impossible for the boy to have run his hand under the knife in the manner described by him in taking up his load. It was shown, however, that this would not be the condition when the last of the material placed upon the machine had passed under the knife and no more was to follow. Appellee testified that he did not remember whether this was the last of the material then upon the platform to be cut or not. Some of the witnesses for the appellants also testified that they reached the scene of the accident within a very short time after it occurred, and found the missing fingers lying behind the knife at about its center, and at a place where the material did not usually pass through. Appellee testifies that he did not see where his fingers were left; that after he discovered that they were cut off he dropped his load and turned away from the machine. He was contradicted by appellants’ foreman as to his not having been cautioned about the dangers attending his work and instructed how to perform it. The verdict of the jury, however, determined that issue in favor of the appel-' lee. The legal effect of appellee’s testimony is to show that he knew if he got his hand under the knife it would be cut. But that fact alone is not sufficient to establish an assumption of the risk as a matter of law. It must also be shown that he understood and appreciated the probability of being injured. The duty imposed upon those who employ children about dangerous machinery to warn and instruct them is neither burdensome nor difficult, and there is little reason for excusing its nonperformance in a ease where an injury results as a consequence of that neglect. The law not only does not impute to children or minors the same capacity possessed by adults for discovering dangerous situations, but presumes that they are less capable of appreciating the extent of the hazards to which they are exposed, and less prudent in guarding against them. A child with full knowledge that he will be injured if he gets into a certain position, or comes in contact with certain machinery, will often, on account of his immature judgment and the lack of proper appreciation of danger, take chances which an adult would avoid. It is not enough to constitute an assumption of the risk by the appellee that he knew he would be injured if he got his hand under the knife. He should have understood the probability of getting it under there while performing' his labors. The jury had a right to conclude that it was the duty of appellants to instruct him how to conduct himself so as to avoid getting his hand in that position. Continental Oil & Cotton Co. v. Gilliam, 151 S. W. 890; Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511. According to appel-lee’s testimony, he had no idea of getting his hand under the knife at the time he received the injury. In the cases cited the principle of law applicable to this class of cases is so fully discussed that it is needless to here attempt any amplification. We think the court correctly refused the peremptory instruction requested. This also disposes of assignments Nos. 3, 8, 14, 15, and 16.

The sixth assignment of error complains of the refusal of the court to give a special charge on contributory negligence. After the general charge of the court on that subject this charge could not have been given in the form requested without placing undue emphasis on that defense.

The appellants also assign as error the refusal of the court to give the following special charge: “If you believe that plain-1 tiff put his hand under the knife at a point between the places where the timbers passed through the same, and if you further believe at the time he did so, if he did, he was not engaged in his work of taking and off-bearing, boards from said machine, then you will find for the defendants.” Appellee testified, as before stated, that he was injured while attempting to remove some slats from the machine in the ordinary performance of his duty. There was no other eyewitness to the accident, but one or two witnesses did testify that they saw the ends of his fingers which had been cut off lying about the middle of the knife, and at a place where the appellee was not ordinarily called upon to put his hand while taking off.the slats. This is the only evidence tending to show that appellee was not engaged in his work at the time he was injured. The mere fact that he got his fingers cut off in some unexplained way while not actually engaged in the work “of taking and off-bearing boards” from the machine is not per se contributory negligence. Whether or not he negligently or intentionally put his hand under the knife was an issue for the jury. That issue was ignored in this charge, and the court did not err in refusing it.

The eleventh assignment of error complains of the refusal of the court to give the following special charge: “Even if you should find from the evidence that Tom Moore was not warned or instructed as to the dangers, if any, of his employment at and about the clipping machine, and if you should further find from the evidence that the failure to warn or instruct him, if any, was negligence, still under the law you would not be authorized to find for the plaintiff by reason thereof unless it should further appear from the evidence that such negligence, if any, was the proximate cause of the injury; and in this connection you are further instructed that it would not be the proximate cause of the injury if it appears from the evidence that the said Tom Moore was aware of such danger, if any, or if in the exercise of ordinary care in the performance of his duties he was bound to become aware of such dangers, if any." The latter portion of this charge justified its refusal. It must not only “appear” from the evidence that Tom Moore was “aware” of the danger, but the jury must also believe from the evidence that he appreciated the extent of the danger and tinderstood how to avoid it, or had been properly instructed on those subjects. There was no error in refusing the charge.

It is also complained that the court assumed in his main charge that the appellee was inexperienced. The evidence shows without contradiction' that he was; that he had been at this particular employment only about one hour when he was injured.

The judgment of the district court is affirmed.


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. PRUITT.
    (Court of Civil Appeals of Texas. Texarkana.
    April 21, 1913.
    Rehearing Denied May 1, 1913.)
    1. Trial (§ 260) — Requested Instructions —Effect of Main Charge.
    In an action for injuries to a servant, a requested instruction that plaintiff could be compensated only for such future result of the injuries as they might believe would reasonably result therefrom, and not for consequences of the injury which might possibly result therefrom, is covered by the court’s charge that in assessing damages the jury ought to consider the nature and extent of the injury, the pain he had suffered as the proximate result of the injury, and any impairment of his ability to earn money proximately resulting, and in that way ascertain what amount will fairly and reasonably compensate him for the injury.
    [Ed. Note. — Por other cases, see Trial, Cent Dig. §§ 651-659; Dec. Dig. § 260.]
    2. Trial (§ 260) — Requested Instructions— Inclusion in Main Charge.
    In an action for injuries in which it was shown that the absence of the patella reflexes was indicative of an injury to the spine, a requested instruction that if the jury believe that the patella reflexes were absent, yet also believed same were absent prior to the time when he was injured, is properly refused as covered in the main charge, that the jury could consider only such injuries as plaintiff received on the occasion of the collision.
    TEd. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Evidence (§ 477) — Opinion of Witness.
    In an action for personal injuries, a witness may properly state that plaintiff was not able to go to his meals.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2237-2241; Dec. Dig. § 477.]
    4. Trial (§ 85) — Evidence—Objections.
    An objection to the whole of testimony admissible in part is properly overruled.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    5. Evidence (§ 127) — Exclamation of Pain by Person Injured.
    An exclamation of pain made by one injured on pressure being applied on his spine by a physician examining him is admissible on the question of his injuries.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 377-3S2; Dec. Dig. § 127.]
    6. Damages (§ 132) — Excessive Damages— Injury to ¿fine.
    Where the evidence showed a permanent injury to the spine, a verdict of $8,000 will not be held excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by Marvin Pruitt against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Marsh & Mcllwaine, of Tyler, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. W. H. Clark and W. T. Strange, both of Dallas, and Lasseter & Mc-llwaine and N. A. Gentry, all of Tyler, for appellee.

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

   WILLSON, C. J.

Appellee while in the discharge of his duties as a brakeman on one of appellant’s trains suffered injury to his person, as the result of a collision between that train and another one of appellant’s trains, due to negligence on its part. As damages he thereby became entitled to, he recovered the judgment for $8,000 from which this appeal is prosecuted.

At the time the collision occurred, appellee was sitting in the cupola of the caboose-forming a part of the train, with his back to a window in said cupola. The force of the collision was great enough to throw him against, and the upper part of his body through, the window. He claimed, and there was testimony sufficient to support a finding in accordance with his claim, that as a result of his back striking the sill of the window he suffered serious and permanent injury to his spine.

The court instructed the jury, if they found for appellee, in assessing his damages to take into consideration the nature, character, and extent of the injury he had received, the pain he had suffered as the direct and proximate result of such injury, and any impairment of his ability to labor and earn money, directly and proximately resulting to him from such injury, and in that way “ascertain what amount of cash money will fairly and reasonably compensate him” for the injury. It appearing from the testimony that on former occasions, as the result of other accidents, appellee had suffered injuries to his person, the court further instructed the jury not to consider in assessing his damages the effect on him of such other injuries. Having so instructed the jury, the court refused appellant’s request to further instruct them that if they found for appellee they could only award him “compensation for such future results of the injuries” as they might believe would “reasonably and probably result therefrom,” and could not award him compensation for consequences of the injuries which they believed might “possibly result therefrom.” We-think the instruction given by the c'ourt sufficiently guarded appellant’s rights, and therefore that he did not err in refusing to further instruct the jury as requested. If the jury observed the instruction given them, and it should be assumed they did, in assessing the damages they awarded appellee for results in the future of the injury he suffered in the collision, they considered only his impaired ability to labor and earn money directly and proximately resulting from that injury, and awarded him on account thereof only the amount necessary to “fairly and reasonably” compensate him therefor. If they considered only that, appellant has no right to complain.

It appeared from the testimony that the absence of the patella reflexes from a person’s legs was regarded by expert witnesses as indicative of a spinal injury. There was testimony that after appellee suffered the injury in the collision the patella reflexes were absent from his legs, and there was testimony tending to show the contrary. There also was testimony that the absence of the patella reflexes is not always due to an injury, but sometimes is congenital. With reference to this phase of the case, appellant asked the court to charge the jury if they believed the patella reflexes were absent, yet also believed same “were absent from his (appellee’s) legs prior to the time when he was injured,” not to consider the absence thereof ■ for any purpose. If the jury believed the reflexes were absent before appellee was injured in the collision, they could not have considered the absence thereof for any purpose without ignoring the instruction the court gave them, for in his main charge the court authorized them to consider only such injuries as appellee received on the occasion of the collision. We think it should be assumed that the jury observed the instruction given them, and that appellant’s rights were not prejudiced by the refusal of the court to further instruct them as requested.

A few weeks after he was injured appellee went to the home of one of his sisters, where he remained 60 or 70 days. During this time another one of his sisters, who resided with the other one, assisted in caring for him, frequently rubbing his back to relieve him of pain he suffered therein. This sister, over appellant’s objection thereto on the ground that it was her opinion about a matter she had not qualified to give an opinion about, was permitted to testify that appellee “was not able to go to his meals,” and that she carried his meals to him. We think the whole of the testimony objected to was admissible (Railway Co. v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1012; Railway Co. v. Long, 26 Tex. Civ. App. 601, 65 S. W. 883; Railway Co. v. Hyatt, 12 Tex. Civ. App. 435, 34 S. W. 677); but, if it was not, clearly the statement of the witness that she carried appellee’s meals to him was not subject to the objection urged to it. When the objection, as in this instance, is to the whole of testimony admissible in part,' it is not error to overrule it. Railway Co. v. Williams, 37 Tex. Civ. App. 198, 83 S. W. 248. For like reasons we think it was not error to overrule the objection made to testimony of the same witness set out in the statement under the sixth assignment, to the testimony of appellee’s mother set out in the statements under the seventh and eighth assignments, and to the testimony of the witness Tucker set out in the statement under the ninth assignment.

At the request of one of appellee’s attorneys, L. E. Smith, a physician, made an examination of appellee, and with reference thereto testified: “I found some subjective symptoms of injury, of spinal injury. He claimed pain there; that is all.” Appellant’s motion to exclude said testimony, on the ground that it was “hearsay and no part or parcel of the res gestas,” was overruled. It is contended this was error because it appeared that the examination was made by Dr. Smith for the sole purpose of acquiring information to enable him to testify as ^n expert witness. From other portions of the testimony of the witness it appeared that in his examination of aispellee the witness “made pressure on the plaintiff’s (appellee’s) spine.” It does not appear from the record that the claim made by appellee was not the “instinctive or spontaneous betrayal of pain” due to the pressure by the physician on his spine. If it was, then the testimony was admissible, and the court did not err in overruling the motion to exclude it. Railway Co. v. Johnson, 95 Tex. 411, 67 S. W. 768.

Appellant earnestly insists that the verdict and judgment are excessive. The're was testimony in the record sufficient to support a finding that appellee suffered serious and permanent injury to his spine. If he suffered that kind of an injury, and the jury must have found he did, it cannot be said that the amount alone of the verdict, and there is nothing else in the record suggesting it, when considered with reference to the injury, indicates they were influenced in fixing it by matters they should not have considered; Therefore we do not think it can be said that the verdict represented any-' thing else than the unbiased judgment of the jury as to the sum necessary to compensate appellee for the injury he suffered. If it represented only that, it was what the law contemplated it should be, and we do not think we should reverse the judgment based on it.

The judgment is affirmed.


author: LEVY, J.

text:
    JOHNSON et al. v. GARY.
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1913.)
    1. Judgment (§ 256) — Conformity to Verdict.
    The judgment must follow the verdict.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    2. Judgment (§ 256) — 'Verdict.
    The verdict fixing the boundary in trespass to try title should definitely locate the boundary line, and a verdict which merely recited that the jury “find a verdict for plaintiff” was insufficient to support a judgment for plaintiff definitely describing the boundaries as described in the petition.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    Appeal from District Court, Panola County ; W. C. Buford, Judge.

      Suit by Jim Gary against E. O. Johnson and others. Erom a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Brooke & Woolworth, of Carthage, and Stephen Chamness, of Timpson, for appellants. H. N. Nelson and W. R. Anderson, both of Carthage, for appellee.

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

   LEVY, J.

The suit is in the form of trespass to try title, but its real purpose was to fix and determine, and the right of the whole case depends on, the boundary lines between the Jonathan Thorp survey of 282 acres and the Jesse Smith survey of 312 acres of land. Appellee owns the Thorp survey, and the appellants are the owners of the Smith survey, a junior location. The jury returned the following verdict: “We, the jury, find the verdict for plaintiff.” Judgment was entered for the plaintiff for the title and possession of the land sued for, describing it exactly as it is described in the petition, being: “Commencing at the N. W. corner of the above survey (Thorp); thence S. 45° E. 1,874 vrs., or to the S. W. cor. of said Thorp survey; thence N. 45° E. 300 vrs.; thence N. 45° W. 1,874 vrs. to the north line of the said survey; thence S. 45° W. 300 vrs. to the beginning.” The judgment also directs writ of possession.

The second assignment is to the point that the judgment and verdict do not determine the locality of the boundary line between the two surveys. The case of Reed v. Cavitt, 1 Tex. Civ. App. 154, 20 S. W. 837, is precisely in point and governs the appeal. See, also, Merrell v. Kenney, 45 S. W. 423; McCurdy v. Bullock, 2 Tex. Civ. App. 223, 20 S. W. 1110. It is the rule that the judgment must follow the verdict, and the verdict fixing the boundary should definitely locate the line. We express no opinion on the facts of the case.

We feel constrained to reverse the judgment and remand the cause upon the grounds of the second assignment.


author: HUFF, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. CARUTHERS.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 31, 1912.
    Rehearing Denied May 24, 1913.)
    1. Carriers (§ 222) — Carriers of Dive Stock —Action for Damages.
    Until delivery to the consignee, there is a right of action in the owner of cattle, the consignor, or one having an interest in them to sue for injuries 'received by them in shipment through the carrier’s negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 952; Dec. Dig. § 222.]
    2. Carriers (§ 73) — Carriage of Live Stock —Shipper’s Right to Divert.
    The consignor of live stock has the right to have the destination of his' consignment diverted while in transit at any intermediate point through which it passes.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 24'8, 249; Dec. Dig. § 73.]
    3. Carriers (§ 76) — Delivery to Carrier— Peesumption of Title in Consignee.
    The fact that goods were delivered to a carrier for delivery to a named consignee at best raises only a presumption of title in the consignee, subject to rebuttal by proof and notice of actual ownership by another.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 256-271, 363; Dec. Dig. § 76.]
    4. Carriers (§ 230) — Carriage of Live Stock — Action for Damages — Affirmative Instructions.
    In an action for damages to a shipment of cattle by carrying them beyond a certain point over the owner’s protest, and after notice of his orders to hold them there, where it appeared that the carrier had notice that plaintiff was the owner and that his agent accompanying the shipment did not claim to be acting for the consignee, and showed that it was acting at the request of the agent, an affirmative charge for-defendant was properly refused.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dee. Dig. § 230.]
    5. Carriers (§ 230) — Carriage of Live Stock — Action for Damages — Instructions.
    In an action for damages to shipment of live stock by carrying them beyond a certain point over the protest of the owner, and after notice of his directions to hold them there, where defendant alleged a new contract of shipment made with the owner’s agent accompanying the cattle, a charge that the prima facie title was in the consignee and that plaintiff could not recover unless authority for the shipment was given by the consignee was properly refused.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    6. Carriers (§ 230) — Carriage of Live Stock — Action for Damages — Liability.
    In an action against appellant, another railroad, and a stock yards company for wrongfully shipping plaintiff's cattle beyond a certain point over his protest, where it appeared that the other railroad terminated at that point, where they were taken by appellant, and that it had nothing to do with forwarding the cattle, a verdict for such other railroad was properly instructed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    7. Carriers (§ 230) — Carriage of Live Stock — Action for Damages — Liability of Stock Yard Company. •
    In an action against appellant railroad company, another railroad, and a stock yard company for wrongfully shipping plaintiff’s cattle beyond a certain point without his consent and over his protest, where it appeared that the other railroad, whose line terminated at that point, unloaded them into the pens of the stock yard company, which was the common agent of the roads, and that its manager notified appellant that the shipment was not to be sent forward until the owner could be heard from, and protested against the shipment, a verdict for the stock yard company was properly directed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    S. Principal and Agent (§ 124) — Authority of Agent — Question for Jury.
    In an action against defendant railroad company for wrongfully shipping the plaintiff’s cattle beyond a certain point without his consent and over his protest, where defendant alleged a written contract with plaintiff’s agent accompanying the shipment, held, on the evidence, that the question whether the agent was authorized to consent to such shipment forward was for the jury.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. J 124.]
    9. Principal and Agent (§ 148) — Unauthorized Acts — Knowledge bt Third Person.
    Where the agent of the owner of cattle accompanying a shipment, consented to their carriage beyond a certain point, contrary to his instructions from the owner, and the defendant railroad knew he was not authorized to ship (forward, or that he had instructions forbidding his doing so, it became a party to the wrong and could not justify itself in an action for damages on the ground that it procured the consent of the shipper in charge.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 534r-552; Dec. Dig. § 148.]
    10. Principal and Agent (§ 101) — Authority op Consignor’s Agent.
    The owner’s agent, empowered to make delivery to the carrier, is presumed to have the power necessary to execute the consignment.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 255, 256, 330, 346; Dec. Dig. § 101.]
    11. Trial (§ 260) — Requested Charges — Charges Given.
    Requested charges, sufficiently covered by charges given, were properly refused.
    [Ed. Note. — For other cases, see Trial,- Cent. Dig. §§ 651-659; Dec. Dig. § 260 ; Carriers, Cent. Dig. § 1407.]
    12. Trial (§ 251) — Instructions—Conformity to Issues.
    In an owner’s action for damages to a shipment of cattle beyond a certain point over his protest and against his instructions, submitted on the question of his agent’s authority to forward the cattle, and defendant’s notice as to such authority, a requested charge on the question whether the agent’s contract was obtained by duress was properly refused as immaterial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    13. Principal and Agent (§§ 14, 178) — Existence op Agency — Notice to Agent.
    Where a carrier of live stock employed a stock yard company to hold cattle in pens at a certain point while waiting shipment, such company was its agent, and notice to it of the owner’s order to hold a shipment was notice to the carrier.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 26-33, 680-684; Dec. Dig. §§ 14, 178.]
    14. Appeal and Error (§ 1066) — Harmless Error — Instructions.
    In an action against a carrier for damage to live stock from a wrongful shipment beyond a certain point without the owner’s consent and over his protest, where the question of liability turned upon the question of authority on the part of the plaintiff’s agent accompanying the shipment, and knowledge of the defendant as to the owner’s instructions to hold the shipment, which issue was presented by appropriate instructions, an instruction submitting the defendant’s demand against the agent for immediate payment of all expenses and the issue of duress was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066; Trial, Cent. Dig. § 538.]
    15. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    Error in a charge not reasonably calculated to injure the complaining party will be held harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    16. Carriers (§ 230) — Carriage of Live Stock — Action for Damages — Issues—Condition of Cattle.
    In an action against a carrier for damages to a shipment of live stock by carrying it beyond a certain point without the owner’s consent, evidence held sufficient as to the condition of the cattle upon their arrival at their final destination to authorize the jury to consider their market value in the condition in which they arrived.
    [Ed. Note. — For other cases, . see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by Eugene Caruthers against the Ft. Worth & Denver City Railway Company and others, in which the Ft. Worth & Denver City Railway Company prayed judgment over against its codefendants in case a judgment was rendered against it. Judgment for plaintiff against the Ft. Worth & Denver City Railway Company, and it appeals.
    Affirmed.
    Turner & Wharton, of Amarillo, and Thompson & Barwise, of Ft. Worth, for appellant. W. Boyce, of Amarillo, and Goree & Turner, of Ft. Worth, for appellee.

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

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

   HUFF, C. J.

The appellee Eugene Ca-ruthers brought suit in the district court of Potter county against the Ft. Worth & Denver City Railway Company, and against the appellees the Pecos & Northwestern Texas Railway Company and the Western Stock Yards Company. The shipment in question was 426 head of steers from Magdalena, N. M., to Ft. Worth, Tex. The cattle were first delivered to the Atchison, Topeka & Santa Fé Railway Company, a common carrier, and in connection with the Eastern Railway Company of New Mexico was operating a line of road from Magdalena, N. M., to Texico, at which point said line of road connected with the Pecos & Northwestern Texas Railway Company. The cattle were transported to Texico and delivered to the Pecos & Northwestern Texas Railway at that point for further transportation. Said last-named company accepted and transported the cattle to Amarillo, Tex., on the 30th day of September, 190S, where they were unloaded into the pens of the Western Stock Yards Company by said last-named carrier. It is alleged, at the time of the arrival of the cattle at Amarillo, plaintiff notified each of the carriers, Pecos & Northwestern Texas Railway Company, Ft. Worth & Denver City Railway Company, and also the Western Stock Yards Company, not to proceed further with the shipment of the cattle out of Amarillo until further instructed by appel-lee Caruthers. Notwithstanding these instructions, and 'over the protest of plaintiff (appellee), on or about the 1st day of October, 190S, and from said point, the Ft. Worth & Denver City Railway Company transported the cattle to Ft. Worth, Tex. That Caruth-ers had ascertained there was no market at Ft. Worth at that time for that class of cattle prior to their arrival at Amarillo, and that the notification was given in order that he might either terminate the shipment at Amarillo and dispose of said cattle at that place or that he might ship said cattle direct from Amarillo to Kansas City, Mo. Over his protest the cattle were shipped to Ft. Worth, where there was no market, and it became necessary to reship them to Kansas City from that point, and he alleges consequent damages resultant on account of the long voyage, depreciation in flesh, extra feed charges, and- extra freight and depreciation in the market value.

The appellant, the Ft. Worth & Denver City Railway Company, answered by general and special exceptions, general denial, and that it had no notice the cattle were not to be shipped to Ft. Worth; that the shipper in charge of the cattle agreed and consented to and directed that the cattle be transported to Ft. Worth; that the shipper executed a written contract for the transportation of the cattle from Amarillo to Ft. Worth; and that, if the cattle were taken from Amarillo to Ft. Worth over plaintiff’s protest, it was caused by its codefendants, and prayed for judgment over against its codefendants in case a judgment was rendered against it.

The appellees the Western Stock Yards and Pecos & Northwestern Texas Railway Company answered separately by general denial and ’by special pleas not necessary to be set out at this time or place. The ap-pellee Caruthers replied that, if the contract of shipment was entered into from Amarillo to Ft. Worth over appellant’s line of road, it was procured by duress and without consideration, and, if the shipper signed the same, he did so without authority from Caruthers, of which appellant had full knowledge.

Trial was had before a jury and resulted in a verdict for the appellee Caruthers against the appellant, Ft. Worth & Denver City Railway Company, for $1,631.45, on which judgment was rendered. The trial court instructed a verdict for the appellees the Western Stock Yards Company and the Pecos & Northwestern Texas Railway Company of Texas. It is not believed to be necessary to further state the pleadings or facts at this time, but, upon consideration of the several assignments, such of the pleadings or facts believed to be necessary to an understanding will be set out.

The first assignment of error presents the action of the court in the refusal to give charge No. 1 as error. The charge is to the effect that the jury should return a verdict for the appellant, the Ft. Worth & Denver City Railway Company. The error assigned or complained of is based on the proposition that Caruthers, the consignor, billed and shipped the cattle from Magdalena, N. M., to Evans-Montague Commission Company, consignees, at Ft. Worth; and, there being no evidence that the consignee authorized or directed appellant to stop the cattle at Amarillo, it was appellant’s duty to transport them to Ft. Worth to the consignee; that the title -was prima facie in the consignee. Ca-ruthers alleged he was the owner of the same. The issue presented by appellant is to the effect that it had no notice that the cattle were not to be shipped to Ft. Worth, and that appellee Caruthers’ duly authorized agent in charge of the cattle, acting for Caruthers, agreed and consented to and directed appellant to take and transport said cattle to Ft. Worth, the place to which they were originally billed, and acting under Caruthers’ instructions, through his agent, they so shipped the cattle.

J. T. Bolton, superintendent of the Western Stock Yards, testified that, under some arrangement between the Western Stock Yards Company and the railroad company in this case, he acted for them in as far as overseeing the loading and unloading of the cattle. “I first saw the shipper in charge of the cattle while the train was unloading. He said Mr. Caruthers told him to hold the cattle until Mr. Caruthers arrived here the next morning. I communicated this to the Denver people next morning before the cattle were loaded. * * * The Denver came down the first time, as I remember, about 5 o’clock in the morning to load these cattle, but did not get them.. I told them to send the engine back and not load the cattle. They came back again about 8 o’clock. X had another conversation with Mr. Dobson at the freight depot and again told him what instructions I had about holding the cattle. I was trying to see that the instructions of the shipper and owner were carried out for them to be stopped here, but they went ahead and loaded the cattle. The cattle were shipped out because the shipper, after they explained to him about the necessity of paying freight, etc., here said he was not prepared to pay the freight and let them go on. He consented for them to be shipped on down to Ft. Worth, and they were then shipped out, but that was after I had exercised all control and power I had to prevent them moving the cattle and after the shipper had done all he could to stop them.” The testimony shows that Caruthers had permission from the consignee to stop the cattle at Amarillo. It indicates that the employés of appellant purported to be acting on the authority which they claim that Davis, the shipper, gave them to take the cattle to Ft. Worth, and some of them state, if the shipper had notified them he was looking for a message from his employer that he wanted the. cattle held, there would have been no necessity of demanding freight to be paid them. The testimony further shows Davis was the employé of appellee Caruthers. There is nothing in the record to show that the appellant shipped the cattle to Ft. Worth, because there was no notice from the consignee to leave them at Amarillo. The cattle were first billed from Magdalena to Ft. Worth.

It is well established in this state, that the owner of cattle or one having an interest in them may sue for injury received by them in shipment through the negligence of the carrier. Railway Co. v. Smith, 84 Tex. 348, 19 S. W. 509; Railway Co. v. Scott, 4 Tex. Civ. App. 76, 26 S. W. 239; Railway Co. v. Barnett, 26 S. W. 782. Until the delivery is made to the consignee, they are at the risk of the consignor, and the right to recover for injury is in the consignor. Railway Co. v. Scott, supra. The owner has the right to have the destination of his consignment diverted while in transit at any intermediate point through which it passes. Ryan v. Railway Co., 90 Minn. 12, 95 N. W. 758; Hutchinson on Carriers, § 660; Am. & Eng. Enc. of Law, vol. 5, p. 214; Railway Co. v. Day, 20 Ill. 375, 71 Am. Dec. 278. The fact that the cattle were delivered to the carrier consigned to the Evans-Montague Commission Company at best was only a presumption of title in the consignee, which was subject to rebuttal by proof and notice. In this case the evidence is undisputed that the cattle were owned by Caruthers. Appellant had notice that he was such owner and at no time claimed to be acting for the consignee in shipping the cattle, but it alleges and proves that it was acting at the request of Caruthers’ agent in charge of the cattle. Cyc. vol. 6, 433-436; Railway Co. v. Laws, 125 S. W. 973. Before the cattle had in fact been delivered to appellant, unless placing them in the Western Stock Yards pens was a delivery to appellant, it was demanding the cattle over the stock yards manager’s protest, and against his wishes and that of the shipper, if their testimony is to be believed. We think the court correctly refused the charge.

Appellant’s second assignment complains at the refusal of the court, to give special instruction No. 8, which is to the effect that the prima facie title was in the consignee, and appellee Caruthers could not recover unless authority was given by the consignee. This charge substantially instructs a verdict against Caruthers. Under the issues in this case and the testimony, we think the court properly refused the charge. As seen, the testimony is uncontroverted that the cattle belonged to Caruthers and that the shipper was his agent and employé to accompany the cattle. Appellant alleged that it made a new contract of shipment from Amarillo to Ft. Worth over its line of road, with Davis as agent for Caruthers. It is also shown by appellant’s testimony that! the shipper, Davis, was acting for Caruthers, and consented to ship the cattle to Ft. Worth. Issue was joined on this question. What has been said under the first assignment will apply to this assignment.

By the third assignment the appellant complains at the action of the court in instructing a verdict for the Western Stock Yards Company and for the Pecos & 'Northwestern Texas Railway Company, and by the fourth assignment complains at the action of the court in refusing special charge No 13, to the effect that if the cattle were transported from Amarillo to Ft. Worth without the consent of plaintiff’s shipper, and that if the Western Stock Yards Company or the Pecos & Northwestern Texas Railway Company helped to and were concerned directly or proximately in taking, or causing said cattle to be taken, by reason of which plaintiff sustained damage, then this defendant (appellant) would not be liable for such damage that might have been caused proximately by its codefendants; and, if the entire damage was so caused, then to return a verdict for appellant. This was an action against all three of the corporations for wrongfully taking and shipping Caruthers’ cattle from Amarillo to Ft. Worth, without his consent and over his protest. This case was tried on that issue and no other. The appellant in this case pleaded over against its codefendants and alleged generally that if the cattle were so transported it was done by its codefendants, one or both of them, and therefore claims judgment over against its codefendants for any sum found against appellant. The facts show that the Pecos & Northwestern Texas Railway Company terminates at Amarillo, where the cattle were taken charge of by the appellant. There is no fact that shows that the Pecos & Northwestern Texas Railway Company had anything to do with shipping the cattle on to Ft. Worth, over the protest of the shipper. It had complied with its contract when it delivered the cattle at Amarillo. It further appears from the evidence that the Western Stock Yards Company was the common agent of-both railroads in holding the cattle at the shipping pens at Amarillo, as neither railroad had facilities for so holding them. The cattle were unloaded into these pens from the Pecos & Northwestern Texas Railway Company cars. Mr. White appears to be the common agent of these two roads at Amarillo.. The evidence we do not think shows any negligent act on the part of the Pecos & Northwestern Texas Railway in transporting the cattle from Amarillo to Ft. Worth over the shipper’s protest. It was therefore, in so far as this company was concerned, altogether proper to instruct a verdict for it. The testimony, as set out by appellant, shows that the manager of the Western Stock Yards Company notified appellant that the shipper did not want to ship to Ft. Worth until the owner of the cattle, Caruthers,' could be heard from, and it further shows that he protested unto the last against appellant taking and shipping the cattle to Et. Worth. The stock yards did not resort to force, it is true, to hold them, and we do not regard' it as having been necessary for it to do so in order to protect its rights. But it was the agent only of appellant in the transportation of the cattle. We do not see where it was guilty of any active negligence which would render it liable to the owner of the cattle or to appellant. On the contrary, all the evidence shouts it was trying to protect the shipper from the wrongful transportation of the cattle to Ft. Worth. The only question was whether the shipper, under proper authority, consented to the shipment of the cattle to Ft. Worth, and this was submitted to the jury. We therefore overrule the third and fourth assignments.

Complaint is made of the fifth paragraph of the court’s charge, which is as follows: “Bearing in mind the foregoing instructions, if you believe from a preponderance of the testimony that plaintiff was the owner of the shipment of cattle described in his petition, and that before it left Magdalena, N. M., he gave instructions to his agent and shipper, R. B. Davis, accompanying said cattle on their journey, to stop the same at Amarillo until he (Davis) received further instructions, or until he (plaintiff) should arrive at Amarillo, and you believe that, before said cattle were loaded on the ears of the defendants the Ft. Worth & Denver City Railway Company, said shipper, Davis, communicated his instructions to T. W. White, the station agent of said defendant railway company at Amarillo, and that instructions to said shipper were not changed, modified, or revoked by plaintiff,, and that he (plaintiff) had not yet arrived in Amarillo, and you further believe from the testimony that the said station agent, White, in violation of said instructions, caused the said cattle to be loaded on the said defendant’s cars and shipped to Ft. Worth, without plaintiff’s consent, and you further believe that plaintiff would, upon his arrival at Amarillo, have terminated said shipment at said point,” etc.

The sixth paragraph is as follows: “If you believe from the evidence that after' being notified of the plaintiff’s instructions to stop and hold said cattle at Amarillo until he gave further instructions, or he arrived in person at said point, the said agent of the defendant the Ft. Worth & Denver City Railway Company at Amarillo demanded of said shipper, R. B. Davis, the immediate payment of all expenses or freight charges against said shipment, without allowing the owner a reasonable opportunity under all the circumstances of complying with such demand, and that such agent or agents of defendant informed the plaintiff’s said shipper that, unless such expenses and freight charges were immediately paid them, they would load said cattle and transport them on to Ft. Worth, and such shipper believed such statements, and under such circumstances consented, but without authority from plaintiff, to the loading and shipment of said cattle on to Ft. Worth, or you further believe from all the facts, circumstances, and evidence before you that said defendant’s station agent, T. W. White, knew, or ought reasonably to have known, that such shipper was without authority to give such consent for the plaintiff, then said defendant would not be justified in causing said cattle to be loaded and shipped to Ft. Worth, and would be liable to plaintiff for his damages, if you find he was damaged under the next preceding paragraph of this charge. But the shipper, R. B. Davis, had the apparent authority to represent the owner of the cattle and to give instructions concerning their transportation to Ft. Worth, and his consent would bind the plaintiff unless you should find and believe from the evidence that such consent to load and ship the cattle to Ft. Worth was given under what seemed to him to be an imperative demand for immediate payment of all the expenses and freight charges against the cattle, or that the agent of the defendant railway company dealing with him knew, or ought from the facts and circumstances to have reasonably known, that the said shipper had no authority to give such consent.”

It is asserted the fifth paragraph ignored the fact that the shipper, Davis, could and did give his consent to the shipment of the cattle on to Ft. Worth. The cause of action alleged is that appellant was notified that the shipper was not to proceed further than Amarillo with the cattle, but over such notice and directions it persisted in shipping the cattle. The appellant replied that Caru-thers’ authorized and acting: agent in charge of the cattle agreed and consented to and directed appellant to transport the cattle to Ft. Worth. Appellee replied if there was any such agreement or direction given it was without his consent and knowledge, and with full knowledge on the part of appellant of the appellee’s instructions, directions, and desires of said shipment to be stopped at Amarillo. There is no question from the testimony that appellant had notice that it -was the desire of appellee to stop the cattle at Amarillo. The testimony shows that the manager of the stock yards was told by the shipper that he did not want the cattle shipped out, and that Caruthers told him to hold the cattle until his arrival the next afternoon. The superintendent further testified he communicated this to the Ft. Worth & Denver City people the next morning before the cattle were loaded out. Chru-thers testified he instructed the shipper to hold the cattle at Amarillo until his arrival. White, the agent, testified when he got to the office the crew that were called to get the cattle came back and said the man in charge would not allow the stock to be reloaded. The man told him Caruthers, “the owner of the stock, told him to stay at Amarillo, or that he would hear from Caruthers at Amarillo whether he would stop at Amarillo or go on to Ft. Worth as they were billed.” The shipper said Caruthers should have arrived on the evening train the day before. White asked him what he proposed to do, and after studying a while said it had been over 12 hours since their arrival, and he had better let them go, and that he had not heard from Caruthers and said they could go on as billed. The testimony further shows by other witnesses that the employés of appellant claimed the rest time was up for the cattle, and that if the shipper wanted to keep the cattle he would have to pay the freight and rebill the cattle. The shipper denies giving consent to loading and shipping the cattle to Ft. Worth, but says he told the employés he was to hold the cattle until he heard from Caruthers. It will be noted in the fifth paragraph that the jury were instructed that if the shipper was instructed “to stop the same (cattle) at Amarillo until he (Davis) received further instructions, or until he (plaintiff) arrived at Amarillo,” and that such instructions were communicated to the appellant, and that such instructions were unrevoked, and that appellant loaded out and transported the cattle without ap-pellee’s consent The facts are practically undisputed that the cattle were to be stopped at Amarillo, and that they were not to be moved therefrom until Caruthers arrived or until the shipper heard from him. Appellant knew of this order from the owner, and, when it and the shipper shipped the cattle, it knew that it was doing so without authority from the owner and over his direction. It was charged with full knowledge of the scope of the agent’s authority. It was at least a proper question for. the jury, and if thej' found that the shipper consented to the shipment of the cattle over his instructions from the owner, and that appellant knew he was not authorized to do so, or if he knew his instructions forbade his doing so, then it became a party to the wrong and cannot justify itself on the ground that it procured the consent of the agent in charge of the cattle. If the evidence made it clear that the shipper had authority to deliver the cattle for appellant, or that appellant did not know that they were to be held at Amarillo, then it might be contended that the appellant was warranted in presuming the shipper had authority to reship the cattle. Railway Co. v. White, 32 S. W. 322.

It is true, as a general rule, the consignor as the agent to whom the owner intrusted his property to be delivered to the carrier must be regarded as having authority to stipulate for the terms of transportation. Having the power to make the delivery, he is presumed to have the power necessary to carry it into effect, and that the carrier is authorized to act upon this presumption in contracting with the agent, and need not inquire into his authority to make a particular shipment. Ryan v. Railway Company, 65 Tex. 13, 57 Am. Rep. 589. As seen in this case, the shipper had no authority to deliver the cattle to appellant, and the facts show that appellant knew his instruction. It knew the shipper had not heard from the owner and that he had not arrived. It knew the shipper’s instructions were to stop the cattle at Amarillo. With this knowledge, there was no presumption to be indulged that he had authority to deliver the cattle for transportation to Ft. Worth. If the jury found the fact that appellant procured delivery from the shipper, his consent to transport the cattle would not under such circumstances relieve it from liability from its and the shipper’s wrong and violation of the instructions. We do not think there was error in paragraph 5 as urged in this court. If the charge was not full enough, we think the sixth paragraph cured the omission. The jury was plainly told: “But the shipper, R. B. Davis, had apparent authority to represent the owner of the cattle and to give instructions concerning their transportation to Ft. Worth, and his consent would bind the plaintiff unless you should find from the evidence * * * that the -agent of the defendant railway company dealing with him knew, or ought from all the facts and circumstances to have reasonably known, that the said shipper had no authority to give such consent.” This charge clearly presented the law as to the presumption upon which the carrier could rely. It would be giving greater extent to a mere presumption than we think intended by the rule to say, where the carrier knew that the shipper did not have the authority to deliver and transport cattle, that yet, in the face of such knowledge, it could rely on a presumption which is only to be indulged in the absence of facts to the contrary. This latter charge is not contradictory of paragraph 5, but as we view it is entirely consistent with that paragraph. We therefore overrule assignments Nos. 5 and 6.

The seventh assignment complains at the action of the court in refusing specially requested charge No. 3. We think this charge just above quoted sufficiently covered the issue presented. The language is not the same, but it practically presents the issue requested. A jury would not probably misunderstand the issue presented by the court’s main charge, and there was no necessity to repeat it by giving the requested instruction.

The eighth assignment complains, at the action of the court in refusing the tenth special instruction requested by appellant. As we understand the issues presented by the court to the jury, he only authorized a recovery by the appellee in case they, found that the shipper had no authority to ship the cattle to Ft. Forth, and that appellant knew that he had no such authority. The question does not appear to have been presented on the theory that the cofitract of shipment was obtained by duress. But the question is presented only in connection with the question of authority or not, and notice by appellant of such authority. If he did not have the power to make the contract of shipment for the owner of the cattle, then it would become immaterial how the contract was obtained. The issue presented by special instruction No. 10 was immaterial and could not have affected the rights of the parties, whatever the jury may have found with reference thereto. '

We overrule the ninth assignment to the refusal of the twenty-eighth requested instruction for the reason above given under the seventh and eighth assignments.

We also overrule the tenth assignment of error. We do not think the specially requested charge was relevant or germane to the issue of the case, as tried and presented.

Complaint is made at the refusal to give instruction No. 9 in the eleventh assignment. This charge is ■ to the effect that if the appellee or the shipper gave notice to the Pecos & Northwestern- Texas Railway of Texas, or the Western Stock Yards Comjany, to hold the cattle at Amarillo, the jury should not consider the same as to the appellant unless communicated to it. The court did give special instruction No. 5 on page 43 of the transcript with reference to notice sent by a message to the Pécos & Northwestern Texas Railway of Texas, at Amarillo. We are inclined to think, from the facts in this case, that the Western Stock Yards Company should be treated as appellant’s agent in holding the cattle at Amarillo. The evidence appears to be undisputed that the two roads had no stock pens at Amarillo and employed the stock yards company to hold cattle for them at that point. The cattle were unloaded into the stock yards before appellant loaded them out for Ft. Worth. We do not think by employing an independent agency a carrier can shift its responsibility as such. We therefore overrule .this assignment.

The twelfth, thirteenth, and fourteenth assignments complain of that part of the charge in paragraph 6 submitting the demand of the immediate payment of all expenses and freight charges against said shipment from the shipper by appellant’s employes, because it is asserted there was no pleading or evidence authorizing the court to submit the question of demand for immediate payment of expenses and freight charges. The evidence by Bolton, superintendent of the stock yards, is to the effect that appellant’s employes claimed that the time for rest of the cattle was up, and that if the freight charges were not paid they would ship them out, and that the shipper stated he did not have the money to pay the freight and let them go, and the shipper’s testimony is to the effect that the employes of the company stated that some one would have to pay the expense of the crew in charge of the train upon which the cattle were shipped, while being held at Amarillo. We are not prepared to say there was no evidence under which the issue could be presented, but, as we view the ease, the question, as presented, was not one likely to injure the rights of appellant, as the case was made to turn upon the question of authority on the part of the shipper and knowledge on the part of appellant as to the appellee Caruthers’ instructions and wishes with reference to holding the cattle at Amarillo. This issue is presented in both paragraphs Nos. 5 and 6 of the court’s charge.

The fifteenth assignment is overruled for the reason we do not think the charge, if error in the particulars complained of, was reasonably calculated to injure appellant.

By the sixteenth assignment of error it is urged that the court erred in authorizing the jury to consider the market value of the cattle at Kansas City upon their arrival there in the condition in which they arrived, because it is asserted there was no evidence of the condition of the cattle upon their arrival. The evidence is to the effect that the cattle were on the road 24 hours longer going by Ft. Worth to Kansas City than they would have been by going direct from Amarrillo; -that they would lose about 20 pounds per head by reason of the extra time. The longer they are on the cars the more they are rubbed, damaged, and bruised. Depreciation in the market value of the cattle because of the additional confinement of 24 hours was about 25 cents per hundred pounds. The witnesses who testified on this point said that long confinement in the car or in shipment affects the appearance of the cattle and affects their selling price. We think there was sufficient testimony as to the condition of the cattle upon their arrival at Kansas City to submit the issue to the jury.

The seventeenth and eighteenth assignments are overruled. We do not think under the objections urged that the court committed reversible error.

We have gone over the assignments and record as carefully as we could, and, while perhaps the trial court has committed some errors in the trial of the case, they are such, in most instances, almost unavoidable in a heated contest over the multitudinous issues presented. But, as we view them, they are such as ought not reverse the case or which require at our hands a more extended notice than has been given. Upon a review of the whole case, we believe a substantially fair trial has been had and the rights of the respective parties sufficiently guarded.

There is no such error presented as we view the case which will require a reversal at our hands, and it is therefore affirmed.

HENDRICKS, J., not sitting.