author: HODGES, J.

text:
    HOUSTON OIL CO. OF TEXAS v. DRUMWRIGHT et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.
    On Appellant’s Motion for Rehearing, Dec. 11, 1913.
    On Appellees’ Motion for Rehearing, Jan. 8, 1914.)
    1. Appeal and Error (§ 732) — Assignments ox Error — Sufficiency.
    Under Court Buie 24 (142 S. W. xii), providing that the assignments of error must distinctly specify the grounds of error relied on ' and set forth in the motion for new trial, assignments of error not referring in any way to a motion for a new trial are insufficient to warrant consideration.
    [Ed. Note. — For other cases, see Appeal and Error Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    2. Appeal and Error (§ 302) — Presentation of Grounds oe Beview in Court Below — New Trial.
    It is unnecessary to assign as a ground for new trial the action of the court in giving or refusing charges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.]
    3. Appeal and Error (§ 742) — Assignments op Error — Sufficiency.
    The assignments of error to he considered must be followed by a sufficient statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    On Motion by Appellant for Behearing.
    4. Stipulations (§ 14) — Construction— Ef-ii'HiCT.
    Where plaintiffs offered in evidence the will of D., the common source of title to show title in their ancestor, a stipulation that the defendant offered in evidence, which was waived by plaintiffs, the record of the court to show action which was taken in cause No. 1196, the estate of D. on appeal from the county court, which record includes all of the action taken by the court on the trial of the cause, the appeal bond filed by the defendant and a supersedeas bond which was approved and filed by the district clerk, is insufficient to show that the will was inadmissible, because an appeal had been duly perfected from the judgment admitting it to probate.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 24-37; Dec. Dig. § 14.]
    5. Appeal and Error (§ 204*) — Presentation of Grounds of Beview in Court Below — Necessity.
    Objections to the admission of evidence not urged in the court below cannot be urged on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. § 204.]
    6. Evidence (§ 273) — Ancient Documents— “ Admission in Evidence.
    In trespass to try title, where defendants claimed that the locus in quo had been conveyed to their grantors by the owner through whom plaintiffs claimed, and it appeared that the records where the deed should have been found had been destroyed, evidence of a deed in defendant’s chain of title which was 60 years old, and which recited a conveyance from the owner through whom plaintiffs claimed, was admissible in evidence, even though the declarations were in the nature of self-serving declarations for the benefit of the grantor; it appearing that plaintiffs had not urged their claim during a period of 50 years.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.]
    On Motion by Appellees for Rehearing.
    7. Appeal and Error (§ 926*) — Review—Exclusion oe Evidence — Bill op Exceptions.
    Where the bill of exceptions as approved by the trial judge expressly .based the exclusion of evidence on the ground that it was self-serving, although reciting other reasons which might have been urged for exclusion, it will be inferred that the trial court found that the other objections were not sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 127% 2899, 3729, 3730, 3735-3747; Dec. Dig. § 926.]
    Appeal from District Court, Newton County; W. B. Powell, Judge.
    Trespass to try title by Mary E. Drum-wright and others against the Houston Oil Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded on rehearing.
    Hightower, Orgain & Butler and W. H. Davidson, all of Beaumont, and H. O. Head, of Sherman, for appellant. T. H. Stone and Carlton, Townes & Townes, all of Houston, for appellees.

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

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

   HODGES, J.

This is an action of trespass to try title, brought by the appellees Mary E. Drumwright, joined by her husband, and John O. tBanks, seeking to recover a tract of land situated in Newton county from the .appellant, Houston Oil Company of Texas. At the instance of the appellant, the administrator of the estate of Mark Wiess was made a party to the suit, and a judgment sought over against the estate on a warranty in the event the appellant lost the land. Delilah Dearks is the common source of title. Mrs. Drumwright, one of the appellees, claims the property by inheritance from her father, J. R. Neely. Previous to the filing of this suit, she had conveyed an interest in the property to John O. Banks. We, gather from the record that the appellees rely upon one or all of three different methods of showing title in J. R. Neely to the property in controversy: (1) By proof of an adoption whereby J. R. Neely became the heir of Delilah Dearks when a child; (2) through a will made in favor of J. R. Neely by Delilah Dearks a short time before her death in 1852, but which was not offered for probate till a short time before this suit was filed; (3) by inheritance from Delilah Dearks, who was the sister, or half-sister, of J. R. Neely’s mother, through whom Mrs. Drumwright claims. The appellant claims title by a connected chain of transfers from Delilah Dearks, the earliest dating back to 1836. It is alleged that two deeds in its chain — one from Delilah Dearks to William English, and another from English to Hotchkiss— were lost; that the records which originally contained these deeds were burned; and that neither the originals nor copies could be produced upon the trial. An effort was made to prove the execution of those two deeds by circumstantial evidence. As a part of the proof tendered to establish the necessary facts, the appellant offered in evidence the recitals in three subsequent deeds; one from Hotchkiss to Stewart Newall, another from Newall to James A. Mason, and a third from Mason to John Herman, under whom the appellant claims. These recitals are to the effect that transfers had been made from Delilah Dearks to William English on the 3d day of July, 1836, and by William English to A. Hotchkiss on the 3d day of August, 1836. Appellant also offered as a part of its proof a copy of a traced copy of what purported to be a receipt given by the county clerk of Jasper county on the 20th day of December, 1845, which certified that James A. Mason had filed in the clerk’s office a Spanish deed to one league of land granted to Delilah Dearks and conveyed by her to William English and by William English to A. Hotchkiss, and that this deed was recorded in Book F. The receipt also contained an itemized statement of the cost of making the record and the certificate. All of this testimony when tendered by the appellant was, upon objection, excluded by the court. At the close of the evidence, the court gave a peremptory instruction to the jury, directing a verdict for the plaintiffs in the suit.

The appellant presents 15 different assignments of error in a brief in many respects well prepared, but not in accordance with the rules. The first six assignments are grouped and are followed by 19 distinct propositions, and then follows a statement of the facts relied upon to sustain the assignments and propositions announced. The first assignment charges that the verdict of the jury and the judgment of the court were contrary to the law and the evidence. The second, third, fourth, and fifth complain of the action of the court in giving the peremptory instruction in favor of appellees, each containing different reasons or grounds of error. The sixth assignment complains of the action of the court in giving a peremptory instruction against the appellant in favor of the estate of Mark Wiess. Each of the 19 propositions that follow refers to the entire group of 6 assignments. The remaining 9 assignments assail the action of the court in excluding certain testimony offered by appellant and in admitting portions of other testimony offered by the plaintiffs over the objection of the appellant. None of the 15 assignments refer in any way to a motion for new trial. The failure of the appellant to brief this case in accordance with the rules adopted by the Supreme Court demands that we take notice of tlie objections of the ap-pellees to the consideration of the assignments. We cannot ignore flagrant violations of those rules in cases where there are no apparent grounds for a failure to conform to their requirements, or where there is nothing to indicate that a miscarriage of justice will be sanctioned by the enforcement of their provisions. Rules 23 and 24 (142 S. W. xii) are as follows:

“(23) Said record should contain an assignment of errors as required by the statute. If it does not, the court will not consider any error but one of law that may be apparent upon the record, if the judgment is one that could legally have been rendered in the lower court and affirmed in the appellate court.
“(24) The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.”

In a well-considered opinion rendered by Justice Higgins in the case of El Paso Elec. Ry. Co. v. Lee, 157 S. W. 748, the authorities relating to this subject are collated and discussed, and it is unnecessary for us to do more than to refer to what is there said.

It may be conceded that under the authority of Ry. Co. v. Beasley, 155 S. W. 183, it is not necessary to embody in the motion for a new trial the action of the court in giving or refusing charges. The ruling in that case is manifestly based upon a construction of the statute which seems to render such action unnecessary. While that ruling was purely dicta, for the reason that the rule referred to could have no application to the facts of that case, yet it is suggestive of the views of our court of last resort as to the proper construction to be given the rules. Conceding that it is unnecessary to embody in motions for new trial the action of the trial court in giving or refusing charges, and that for that reason it would not be necessary for an assignment complaining of such action to contain a reference to the motion, we still think the assignments here should be ignored, for the reason that they disregard other provisions of the rules equally as important. Different assignments containing different propositions of law are in several instances grouped, and the entire group is followed by a single statement, and this often so meager that it furnishes no grounds for sustaining the assignments.

We have carefully examined the record, and find no fundamental error of which we are required to take notice in the absence of an assignment. The judgment of the district court is therefore affirmed.

On Appellant’s Motion for Rehearing.

We have heretofore refused to consider any of the appellant’s assignments of error, and therefore could not do otherwise than affirm the judgment of the trial court. Unwilling, however, to permit the mere failure of counsel to conform to the rules in presenting assignments to defeat a meritorious appeal, we have again carefully examined the record before us and have reached the conclusion that the trial court should not have instructed a verdict for the appellees. If the will of Mrs. Delilah Dearks was admissible in evidence, it was sufficient, prima facie, to establish a title in J. R. Neely, the father of Mrs. Drumwright, from whom the latter inherits. The objection is urged that the judgment of the county court admitting the will to probate had been appealed from, and that appeal was still pending at the time the will was offered. This objection would be good if the facts relied on were shown to be true. The only evidence of those is the following agreement: “It is agreed that the Houston Oil Company of Texas, defendant herein, tender and proffer to tender in evidence, which was waived by attorney for plaintiffs, the record of the court to show action which was taken in cause No. 1196, the estate of Delily Deark, deceased, on appeal from the county court of Newton county to the district court at the time of the introduction of the certified copy and probate of the will of Delily Deark, deceased, offered for evidence by the plaintiffs in this cause, which record includes all of the actions taken by the court upon the trial of said cause and the appeal bond filed therein by the appellant, Houston Oil Company of Texas, the dismissal by the district court thereof; and it is admitted by the parties that the appellant, Houston Oil Company of Texas, filed therein on February 29, 1912, a supersedeas bond, which bond was approved and filed by the clerk of the district court of Newton county, Texas, prior to the offering of certified copy of the will of Delily Deark and probate thereof.” Before this court can say that a case in which a judgment has been rendered is still pending on appeal, the record must show some evidence of that appeal and that it was seasonably perfected. Eor one party merely to waive the introduction of the evidence tending to show those facts, without being followed by an admission full enough to supply the facts, leaves the record incomplete. In this record the admission refers merely to case No. 1196. We have no means of knowing whether that is a proceeding to probate the will of Mrs. Delilah Dearks, or is some other matter pending in the court. In the present state of the record, the objection to the introduction of the will of Mrs. Dearks is untenable. That instrument alone was suffi-eient to invest Mrs. Drumwriglit with a good title if Mrs. Dearks had not parted with the land before her death in 1852.

Appellant offered in evidence a deed containing the following recital: “All that tract or parcel of land situated in Zavalla’s grant on the river in Sabine, Texas, it being the same which was granted to Delilah Dearks by the commissioner, Geo. A. Nixon, on the 3d day of October in the year one thousand eight hundred and thirty-five, and by her conveyed to William English by deed bearing date the 3d day of July in the year of our Lord one thousand eight hundred and thirty-six, and by said English conveyed to the present vendor by deed bearing date the 3d day of August in the year of our Lord one thousand eight hundred and thirty-six.” The above recital is contained in a deed, from A. Hotchkiss to Stewart Newall, which was dated the 18th day 4 of October, 1837. There were similar recitals in two other deeds offered; one from Stewart Newall to James A. Mason dated the 10th day of February, 1845; another from Mason to John Herman dated the 28th day of June, 1851. The deeds were offered as links in appellant’s chain of title, and the recitals as circumstances tending to show that a deed had previously been executed by Delilah Dearks to William English, under whom the appellant claims, that deed being missing. It must be conceded that, if the facts were sufficient to show that Delilah Dearks had executed a deed to William English, as seems to be indicated by the recitals tendered in evidence, then the appellant had a complete chain of title originating many years prior to the death of Mrs. Dearks. These recitals were excluded by the court on the ground that they were hearsay and self-serving and were not evidence of title. It is here insisted by counsel for appellees that no sufficient predicate was laid for the introduction of this character of evidence. But that objection was not made in the court below, and cannot be urged for the first time on appeal. The deeds in which those recitals appeared were in the appellant’s chain of title and were considerably over 60 years of age. The records where the deed from English would likely be found had been burned many years ago. According to the testimony of appellees, J. R. Neely had owned this property under the will or by inheritance since 1852, but there is no evidence that he made any claim to it or had paid any taxes, although much of his life was spent in this state at no great distance from the land. The record shows that numerous transfers of the land had been made between 1845 and 1900, when Neely died. Mrs. Drumwright admitted that during all that time neither she nor her father made any pretense of claiming this land. Uhder this state of facts, the recitals should have gone to the jury for what they were worth, as circumstances tending to show that Mrs. Dearks had executed the deed to English. The principle upon which this rule rests is so fully discussed in the case of Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033,' that we deem it unnecessary to add anything to what is there said. In granting this rehearing, we have deviated from our former holding in regard to considering the assignments of error merely for the purpose of correcting the ruling of the trial court upon this one question.

The remaining assignments will not be considered. The motion for rehearing is granted, and the judgment of the trial court in its entirety is reversed, and the cause remanded.

On Appellees’ Motion for Rehearing.

In disposing of the assignments discussed in the original opinion, we relied upon the facts stated in appellant’s bill of exception No. 2 for the grounds of the objection made to the evidence which was excluded. Counsel for appellees in his motion for a rehearing refers to the original statement of facts for the purpose of showing that the further objection that no predicate had been made for the introduction of the recitals was also made at the time the deeds referred to were offered. By reference to that part of the record, it appears that the objections mentioned were interposed to the entire deed. The court at first determined that the appellant, defendant below, should offer more testimony for the purpose of accounting for the absence of the originals. After other testimony was adduced, it seems that the court overruled the objections and admitted the deeds without any qualification. The bill of exception shows that after this was done, and after all the evidence both for the plaintiffs and defendant had been concluded, the court sustained the objection of the plaintiffs to the recitals in the three deeds referred to in the original opinion, and excluded them from evidence. The court appends the following qualification in approving the bill of exception: “The foregoing bill of exception is approved with the following explanation and qualifications: The three deeds of conveyance above referred to are offered by the defendant in evidence in support of its title to the land in controversy. No objection was made to the deeds as a whole, but the plaintiffs objected to the self-serving declaration in the deeds as evidence of title or for any purpose at that time and stage of the trial. The objection was at the time passed over for a ruling to be made later. There being no occupancy of the land by any of the grantees under the conveyances and nothing to show ownership under said recitals, the court held the deed admissible but the recitals therein complained of inadmissible because self-serving, and, as no right was exercised thereunder, were, in the state of the record when the evidence was closed, inadmissible for any purpose.” It appears from the foregoing that the court based his ruling solely upon tlie ground that the recitals were seli-serving, and the inference is that other grounds were not considered.

We adhere to our original conclusion, believing that justice can be done in this case only by remanding it for another trial. The motion for a rehearing is therefore overruled.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    UNDERWOOD et al. v. WATSON.
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1914.)
    Courts (§ 247)— Court or Civil Appeals— JURISDICTIONAL AMOUNT.
    Where an appeal from a justice of the peace to the circuit court involved only $84.20, a further appeal will not lie to the Court of Civil Appeals, under Bev. Civ. St. 1911, art. 1589, for insufficiency of amount involved.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by C. C. Watson against J. A Underwood and others. A justice’s judgment having been rendered in favor of plaintiff, the case was appealed to the circuit court, where the appeal was dismissed, and defendants appeal.
    Dismissed.
    A. S. Rollins, of Amarillo, for appellants. Earl Anderson, of Midland, for appellee.

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

   HARPER, C. J.

This suit originated in the justice court, precinct No. 1, Midland county, Tex.; the amount sued for being $84.20. Judgment was rendered in the justice court for said sum, and appellants sought to appeal the cause to the county court. When the cause was reached in the regular call of the docket, it was dismissed. Upon motion of appellee it was dismissed because of a defective appeal bond, and from that judgment of dismissal this appeal is prosecuted. This court has not jurisdiction to entertain this appeal, because the amount in controversy does not exceed $100. Article 1589, Rev. Civ. Stat. 1911; Mask v. L. & T. Lumber Co., 145 S. W. 299.

For this reason this appeal is dismissed.


author: JENKINS, J.

text:
    RAY v. CITY OF BELTON et al.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 7, 1914.)
    1. Injunction (§ 85*) — Subjects of PkotecTION.
    Equity will restrain the enforcement of a void criminal ordinance where its enforcement will work an irreparable injury to property for which complainant has no adequate remedy at law.
    [Ed. Note. — Eor other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]
    2. Nuisance (§ 60*) — What Constitutes.
    That which is not in fact a nuisance or injurious to public he.alth cannot be made so by a declaration of the Legislature or a city council.
    [Ed. Note. — Eor other cases, see Nuisance, Cent. Dig. § 187; Dec. Dig. § 60.*
    Eor other definitions, see Words and Phrases, vol. 5, pp. 4855-4864; vol. 8, p. 7734.]
    3. Constitutional Law (§ 251*) — Due Process oe Law — Deprivation op Property.
    Private property cannot be taken without allowing the owner his day in court.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. § 251.*]
    4. Injunction (§ 144*) — Temporary Injunction-Issuance.
    Injunction is a harsh remedy, and he who seeks it must show himself entitled to it; and hence one seeking to enjoin the enforcement of an ordinance cannot complain that a temporary injunction was refused where his petition did not show that he was within the purview of the ordinance.
    [Ed. Note. — Eor other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*]
    5. Criminal Law (§ 43*) — Depenses—Tempo-rary Injunction.
    Where one subject to a criminal ordinance secures a temporary injunction, and the injunction is dissolved upon final hearing, the case being decided against him, the injunction affords no protection from prosecution for violation of the ordinance during its pendency.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 49; Dec. Dig. § 43.*]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Petition by S. M. Ray, Sr., against the City of Belton and others. From the denial of a temporary injunction, plaintiff appeals.
    Affirmed.
    ,Sam D. Ware, of Belton, for appellant. J. L. Beringer, of Belton, for appellees.
   JENKINS, J.

Appellant presented to the judge of the district court of Bell county his petition for a temporary injunction against the city of Belton, its mayor and city attorney, restraining them from prosecuting him for an alleged violation of an ordinance requiring all persons who maintain privies within 225 feet of a sewer pipe in said city to connect such privy with the sewer system, owned and maintained by said city, and praying upon final hearing that said injunction be made perpetual. The district judge refused to grant the writ.

Appellant, in an able brief, presents, in effect, the following legal propositions, the correctness of which is sustained by the authorities: (a) A court of equity will restrain the enforcement of a void criminal ordinance where its enforcement would result in irreparable injury to property, for which the party complaining has no adequate remedy at law. (b) That which is not in fact a nuisance or injurious to public health cannot be made so by a declaration of the Legislature or a city council that it is such, (c) Private property cannot be taken without allowing the owner his day in court.

The answer to appellant’s complaint that he was denied a temporary writ of injunction so far as these propositions are concerned, is that his petition does not show that he is liable to prosecution under the ordinance complained of, in that he does not allege that his privy is situated within 226 feet of any sewer pipe in said sewerage system; and consequently it is not made to appear that the other two legal propositions are applicable to his case. Injunction is a harsh remedy, and he who seeks it must show himself entitled to it. No presumptions outside of his allegations will be indulged in his favor. The refusal of a temporary injunction does not deny him his day in court, inasmuch as he will be entitled to a hearing on the merits of his case upon final trial. Should he refrain from using his privy during the pendency of his suit from fear of prosecution, he will suffer no more than a temporary inconvenience. Had the temporary writ been granted, and the case been decided against him.upon final hearing, he would not have been exempt from prosecution for violating the ordinance while the temporary injunction was in force.

We overrule appellant’s contention that the ordinance is void upon its face. It may or may not be enforceable, as applied to the facts of appellant’s case; but, inasmuch -as we cannot know in advance of a trial on the merits what the facts of this case are, we refrain from the discussion of legal principles as applicable to any hypothetical case.

Finding no error of record, the action of the court in refusing a temporary writ of injunction is sustained, and the judgment herein is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    HUDGINS et al. v. INTERNATIONAL & G. N. RY. CO. et al.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 7, 1914.)
    Railroads (§ 194) — Foreclosure—Liability ob Purchaser.
    The Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) provides that an initial carrier of an interstate shipment shall be liable to the holder of the bill of lading for any injury in transit, but with a right of recourse to the carrier actually causing the damage. After damages had occurred on the line of a connecting carrier, the initial carrier was sold in foreclosure to defendant free of all debts except certain prior mortgages. Rev. St. 1911, art. 6625, provides that in case of any sale of the property and franchises of a railroad company, the purchaser shall be subject to the payment of all subsisting liabilities and claims for loss of and damage to property sustained in the operation of the railroad by its predecessor. Held, that the state statute referred only to loss of and damage to property directly caused by or sustained in the physical operation of the railroad, and did not include the predecessor’s liability as such initial carrier.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 643-655; Dec. Dig. § 194.]
    Appeal from District Court, Brazoria County'; Samuel J. Styles, Judge.
    Action by S. H. Hudgins and another against the International & Great Northern Railway Company and T. J. Freeman, receiver thereof. Dismissed as to the receiver and judgment for defendant International & Great Northern Railroad Company, and plaintiffs appeal.
    Affirmed.
    Masterson & Rucks, of Angleton, for appellants. Wilson, Dabney & King, of Houston, for appellees.

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

   PLEASANTS, C. J.

This suit was brought by appellants, S. H. Hudgins and William Blair, on July 5, 1911, against the International & Great Northern Railroad Company and T. J. Freeman, receiver of said company, to recover damages sustained by 130 head of cattle owned by appellants and shipped by them from Sandy Point, a station on said railroad in Brazoria county, Tex., to the town of Manford in the state of Oklahoma. The shipment was over the road of the International & Great Northern Railroad Company, which was then being operated by T. J. Freeman, receiver, under appointment of the United States Circuit Court for the Northern District of Texas, to Ft. Worth, Tex., and thence over the lines of connecting carriers to Manford, Okl. On August 20, 1912, the plaintiffs filed an amended petition by which the appellee was made a party defendant, and which, in addition to the allegations of the original petition, alleges, in substance, that since the filing of the original petition the property and franchises of the International & Great Northern Railroad Company had been sold under order of the court in which said receivership had been granted, and that the purchasers of said property and franchises had incorporated themselves under the name of International <& Great Northern Railway Company, and said last-named company now owns and operates said railroad, and by reason of its said purchase and ownership of the property and franchises of- said International & Great Northern Railroad Company is responsible'to plaintiffs, under the provisions of article 6625 of the Revised Civil Statutes 1911, for the damages to their said shipment of cattle. The appellee answered by general demurrer and general deniai and by special plea, in which it is averred that by the contract of shipment it was expressly agreed and stipulated that in consideration of a reduced rate of freight the carrier, T. J. Freeman, receiver, would not be held liable for any damages to said shipment after it was delivered to the connecting carrier, and that no damage was sustained by said cattle on the line of said, initial carrier, but said cattle were promptly and safely transported to Ft. Worth, the end of the line of the initial carrier, and there delivered to the connecting carrier in good condition. The receiver, T. J. Freeman, filed plea in abatement, which was sustained by the trial court and the suit against him dismissed. The evidence introduced by plaintiffs shows that their cattle were injured by the negligent manner in which they were transported and reached their destination at Hanford, Okl., in a damaged condition, but the undisputed evidence shows that none of this damage occurred on the line of appel-lee company, but was caused by the negligence of the connecting carriers. The shipment was made under a through bill of lading from Sandy Point in Brazoria county, Tex., to Manford, Okl. The property and franchises of the International & Great Northern Railroad Company were, by the judgment of foreclosure under which ap-pellee purchased, sold free of all debts of said road save certain prior mortgages which were not foreclosed. Upon these facts the trial court instructed the jury to return a verdict in favor of the appellee.

The only question presented by this appeal is whether under article 6625 of the Revised Statutes of this state the purchaser of a sold-out railroad takes the property and franchises of such railroad charged with liability for damages to property not directly sustained in or caused by the operation of the physical property of the sold-out railroad. This article of the statute contains the following language: “In ease of any sale heretofore or hereafter made of the property and franchises of a railroad company within this state, the purchaser or purchasers thereof and associates, if any, shall be entitled to form a corporation under chapter one of this title, for the purpose of acquiring, owning, maintaining and operating the road so purchased, as if such road were the road intended to be constructed by the corporation; and, when such charter has been filed, the new corporation shall have the powers and privileges then conferred by the laws of this state upon chartered railroads, including the power to construct and extend; provided, that, notwithstanding such incorporation, the property and franchises so purchased shall be charged with and subject to the payment of all subsisting liabilities and claims for death and personal injuries sustained in the operation of the railroad by the sold-out company and by any receiver thereof, and for loss of and damage to property sustained in the operation of the railroad by the sold-out company and by any receiver thereof, and for the current expenses of such operation,” etc. This being a through shipment from a point in this state to a point in the state of Oklahoma, the property having been accepted by the receiver for such shipment and a through, bill of lading issued therefor, the receiver was liable under the Carmack amendment to the Interstate Commerce Act for all loss or damages to the property caused by the connecting carrier. U. S. Comp. St. Supp. 1911, p. 1307. This amendment provides: “That any common carrier,” etc., “receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damages, or injury to such property caused by it or by any common carrier,” etc., “to which such property may be delivered or over whose line or lines such property may pass,” etc.

“That the common carrier,” etc., “issuing such receipt or bill of lading shall be entitled to recover from the common carrier,” etc., “on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage or injury, as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Appellee concedes that upon the facts of this case the attempt of the receiver in his contract of shipment to limit the liability to damages sustained on his own line was void, and that, notwithstanding the clause in the contract so limiting his liability, he was liable under the act above quoted for the damage caused by his connecting carriers. This liability of the receiver, however, is not a charge upon the property purchased by appellant unless it is made so by the statute of this state before quoted. We do not think the statute was intended to embrace an indirect or constructive liability of this kind. The clause “all subsisting liabilities and claims for death and personal injuries sustained in the operation of the railroad” necessarily refers only to the physical operation of the road, and we think the succeeding clause, “and for loss of and damage to property sustained in the operation of the railroad” has the same meaning and refers only to loss of and damage to property directly caused by or sustained in the physical operation of the railroad, and does not embrace a liability not directly connected with such operation. In making the purchaser under a foreclosure sale responsible for debts of the mortgagor not secured by any lien on the property, and not incurred for the benefit of the property, the act in question violates heretofore well-settled principles of the law, and we are not disposed to construe the act so as to place upon such purchaser any liability not clearly created by the language of the act.

We are of opinion that the judgment of the court below should be affirmed and it is so ordered.

Affirmed.


text:
    WILSON v. BURCH et al.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 3, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Brokers (§ 65) — Right to Commissions— Unauthorized Terms in Contract — Ratification by Owner.
    An unauthorized provision in a contract of sale, made by a broker, will not prevent his recovering his commission, if the owner of the property ratifies the contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    2. Brokers (§ 82) — Unauthorized Terms of Sale — Ratification—Pleading.
    The issue of ratification of a contract of sale made by a broker, containing unauthorized provisions, is raised, in an action for commissions, by the allegation of the answer that defendant refused to accept said terms, and to that extent repudiated the contract; Rev. Civ. St. 1911, art. 1829, providing any special matter of defense pleaded by defendant shall be regarded as denied, unless specially admitted.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-193; Dec. Dig. § 82.]
    3. Appeal and EIrror (§ 882) — Invited Error-Instructions.
    A party who has requested and obtained a charge on an issue may not complain of its submission to the jury in the general charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    4. Brokers (§ 86) — Unauthorized Terms of Sale — Ratification—Evidence.
    Evidence, in an action by a broker for commissions held sufficient to sustain a finding that defendant, with full knowledge of the contents of the written contract of sale, made by the broker, ratified it.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    5. Brokers (§ 64) — Right to Commissions— Contract of Sale — Breach by Purchaser.
    The contract of sale of land requiring a perfect title, the purchaser did not breach it, so as to deprive the broker of right to commissions, by demanding that a release be shown of vendor’s lien notes, to which the land was subject, before he paid the purchase money, and refusing to send such money to enable the vendor therewith to obtain the release.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 67, 97; Dec. Dig. § 64.]
    Appeal from District ‘Court, Liberty County ; L. B. Hightower, Judge.
    Action by G. W. Burch and another against Charles Wilson. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellant. E. B. Pickett, Jr., of Liberty, for ap-pellees.

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

   JENKINS, J.

Appellees, who are land agents, telephoned appellant, Wilson, asking him what he would take net for a 184%-acre tract of land out of section 7, Texas & New Orleans Railway survey. Appellant replied he would take $10 cash per acre, and would consult two other parties who were joint owners with him as to the price they would take. They agreed to the proposition to sell for $10 cash, and appellees were so notified. Appellees entered into a written contract with G. A. Fairbanks, of Gettysburg, S. D., to sell him said tract of land at $13 per acre, cash. We quote from said agreement as follows: “Cash in hand $500; balance of the purchase price above mentioned to be paid when the deed and abstract are delivered, with a perfect title, at First National Bank at Gettysburg, South Dakota, same to be passed upon and accepted by attorneys or attorney of said G. A. Fairbanks. It is further agreed and understood that, in ease the title to this land should prove defective as passed upon by the attorneys of the said G. A. Fairbanks, and cannot be made good, then said $500, together -with ten per cent, interest, shall be returned to the said G. A. Fairbanks at once on demand. It is further agreed that the parties of the first part agree to make deed and abstract, and forward for examination and acceptance as soon as practicable.” This contract was signed by Burch and Boyd in their own name; they not being certain as to who were Wilson’s associate owners. There was a judgment for appellees for $3 per acre, as their commission.

1. Appellees had no authority to contract for the delivery of the deed and abstract at the First National Bank at Gettysburg, S. D., nor that the same should be passed upon and accepted by attorneys of Fairbanks, and, unless appellant ratified said contract, appellees were not entitled to judgment. If appellant ratified the contract, it is binding on him. 19 Cyc. 202, 220, 256, 296. The court submitted the issue of ratification to the jury, and they found in favor of ap-pellees.

2. It is the contention of appellant that the judgment of the trial court should be reversed, for the reasons, first, that the court erred in submitting the issue of ratification to the jury, because appellees had not pleaded ratification ; and, second, that there was no evidence to sustain the finding of the jury on this issue. Appellant, among other things, alleged in his answer “that this defendant and his associates refused to accept said terms, and to that extent [referring to the consummation of the deal in South Dakota, and the acceptance of title by Fairbanks’ attorney] repudiated the contract of said Burch and Boyd.” This, we think, was sufficient to raise the issue of ratification. R. S. art. 1829; Cook v. Greenberg, 34 S. W. 688; Railway Co. v. Avis, 100 Tex. 33, 93 S. W. 425; McKinney v. Nunn, 82 Tex. 44, 17 S. W. 516; Meyer v. Oppermann, 76 Tex. 108, 13 S. W. 174.

3. Evidence as to this issue was offered without objection, and appellant requested the following special charge, which was given: “You are instructed that, before any act or conduct of the defendant, Charles Wilson, or his co-owners could be taken or held as a circumstance tending to a ratification of or acquiescence in the terms of the contract that was made between Burch and Boyd on one part and Fairbanks on the other part, it is necessary that said Wilson or his associates should have known or have had knowledge of the terms of said contract in which said acts or conduct is claimed to have shown ratification or acquiescence.” Having requested and obtained a charge on this issue, appellant cannot complain of its submission to the jury in the general charge. Freeman v. Wilson, 149 S. W. 416; Beef Co. v. Yeargan, 123 S. W. 723; Railway Co. v. Smith, 155 S. W. 363; Oil Co. v. Gathings, 154 S. W. 668; Fessinger v. Times Co., 154 S. W. 1174.

4. Upon the issue of ratification, appel-lee Burch testified as follows: “It seems to me like it was about a week after it (the contract) was entered into that I showed it to Mr. Wilson. I took it and went over to Dayton, and showed it to him in his office. When I showed it to him, he said, ‘We ought to have closed it up here — -have an attorney to pass on it here.’ The answer I gave him to that was that I told him I tried to get Fairbanks to have it passed on, the abstract of title, here. Mr. Fairbanks said he wanted it passed on by his attorney up there, and to that Mr. Wilson said, ‘All right, go ahead, make the deed and abstract, and send it to them.’ ” This, we think, is sufficient evidence to sustain the finding that appellant, with full knowledge of the contents of the written contract, ratified the same.

5. The evidence shows that Wilson and his associates owned 621 acres out of section 7, Texas & New Orleans Railway survey, of which the 184% acres was a part, and that there was a vendor’s lien on the entire tract owned by them for about $3,500, evidenced by four notes, and that , one of said notes was paid off pending negotiations, leaving about $2,650 due on said notes. Appellant and his associates furnished an abstract and executed a deed to said land, and sent the same to the First National Bank at Gettysburg, S. D., with instructions to deliver the same to Fairbanks upon payment of attached draft for balance of the purchase money. It was shown that the title to said land was clear, except as to the vendor’s lien above mentioned. Fairbanks, upon advice of his attorneys, declined to pay for the land until release of the vendor’s lien was furnished. Wilson wrote Fairbanks that, if he would send the balance of the purchase money to a bank at Liberty, to be used by him in payment of the vendor’s lien notes, he would pay said notes off, and furnish a release of the vendor’s lien at the time the money was paid over to him. Fairbanks declined to do so, demanding that the release of the lien be sent to the bank at Gettysburg, S. D., before he paid the purchase money. Thereupon Wilson ordered the deed and abstract returned to him. It was shown that Wilson was able to have borrowed the money with which to pay off the vendor’s lien notes, and that the owner of the lien would have released the same upon payment of said notes, but that Wilson and his associates did not desire to pay off the lien on the entire tract of land, unless this sale was consummated. Appellant insists that appellees did not furnish a buyer who was ready, able, and willing to take the land at the price agreed upon in said contract, in that it was Fairbanks’ fault that the trade was not consummated. The evidence shows that Fairbanks was able and willing to take the land in accordance with his contract of purchase; that is, the abstract should show a perfect title before he paid for the same. While the evidence shows that Wilson was able to pay off the vendor’s lien notes, and thereby furnish good title, he was unwilling to do so, except upon the terms demanded by him; that is, that Fairbanks should send the remainder of the purchase money to a bank at Liberty, to be used in discharging said vendor’s lien notes. From this, it appears that Fairbanks did not breach the contract.

For the reasons above given, the judgment of the trial court is affirmed.

Affirmed.


author: HIGGINS, J. McKENZIE, J. McKENZIE, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. DOZIER et al.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1913.
    On Rehearing, Jan. 22, 1914.)
    Tbial (§ 234) — Instructions — Misleading; Instructions.
    In an action for the death of a person in a crossing accident, where the court submitted as grounds of recovery the engineer’s failure to keep a proper lookout, excessive speed, and discovered peril, an instruction that the burden was on plaintiffs to prove by a preponderance of the evidence the facts submitted as material to their right to recover, and that the burden was likewise upon the defendant to prove by a preponderance of the evidence the facts submitted as material to its defense, was contradictory, and calculated to lead the jury to believe that the burden rested upon defendant to disprove negligence, since it did not limit the burden resting upon defendant to the affirmative defensive issue of contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-538, 566; Dec. Dig. § 234.]
    McKenzie, J., dissents.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Avarillo Dozier and others against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Lane, Wolters & Storey, Baker, Botts, Parker & Garwood, Wm. A. Vinson, and Bentley Nelson, all of Houston, for appellant. John W. Parker, of Houston, for appellees.

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

   HIGGINS, J.

Appellant prosecutes this appeal from a judgment rendered against it for tie sum of $7,000 in favor of the minor children of W. A. Dozier, Sr., who was killed by a passenger train of the appellant on September 27, 1911, near the town of Harrisburg, between the cities of Houston and Galveston. Appellant’s line of railway between the cities mentioned crosses a public road running north and south to Harrisburg, known as the “Broadway Road.” On the date mentioned the deceased was in a buggy, drawn by a mule, and, while crossing the track at the crossing mentioned, was struck and killed by an engine drawing a passenger train bound from Galveston to Houston.

The plaintiffs’ right to recover was submitted upon three grounds duly pleaded: (a) Failure of the engineer to keep a proper lookout while approaching the crossing; (b) excessive speed, dangerous to those rightfully using the crossing; and (c) discovered peril. The defendant answered by general denial and a special plea of contributory negligence. Error is assigned to the eighth paragraph of the court’s charge, which reads:

“The burden is on the plaintiffs to prove by a preponderance of the evidence the facts which are submitted to you in this charge as-material to their right to recover, and the burden is likewise upon the defendant company to prove by a preponderance of the evidence the facts which are submitted to you in this charge as material to its defense; but, in considering the m.atter of burden of proof, with reference to both parties, you will look to all the evidence, without regard to whether it was introduced by the one party or the other.”

The paragraph of the court’s charge presenting the case from the standpoint of the appellant, reads: “On the other hand, if you do not believe from a preponderance of the evidence that the engineer failed to use the care a man of ordinary prudence would have done to discover the presence of the said Dozier at the crossing, and to avoid injuring him, or if you do not believe he ran the train at an excessive rate of speed, which was dangerous to persons upon, or about to enter upon, the said crossing, and on that account did not have the control of the train that was essential and necessary for him to have in order to avoid injuring persons at the • crossing who were in the rightful use thereof, and who were using the same in the exercise of ordinary care, and if you do not believe from a preponderance of the evidence that the said engineer actually discovered the peril of said Dozier in time by slackening the speed of the train to have avoided injuring the said Dozier, or do not believe that a man of ordinary prudence, situated as the said engineer was, would have undertaken to avoid injuring the said deceased by slackening the speed of the train, under the circumstances, or if you do not believe, though the said engineer may have discovered the peril of the said Dozier, if there was such peril, and failed to slacken the speed of the train, that such failure was a proximate cause of the injury of said Dozier, you will, without inquiring further, return a verdict for the defendant. Or, if you believe from the evidence that what the engineer and fireman did, or omitted to do, was what a man of ordinary prudence, situated as they and each of them were, would or would not have done under the same or similar circumstances, you will likewise return a verdict for defendant.”

If the paragraph of the court’s charge upon the burden of proof had limited the burden resting upon defendant to the affirmative defensive issue of contributory negligence, it would have been entirely proper. However, it does not do so. It instructs that the burden is upon defendant to prove by a preponderance of the evidence the facts submitted as material to its “defense.” Manifestly upon the issues of negligence vel non, submitted in the paragraph of the charge last quoted, there is no such burden. Viewing the charge from its most favorable point of view, it is contradictory, and, in our opinion, it was calculated to lead the jury to believe that the burden rested upon defendant to establish the negative of the issues of negligence vel non. Under the state of the evidence in this record, we are not prepared to hold that the error is a harmless one, under provisions of rule 62a (149 S. W. x).

A reversal of this case is also asked upon the ground that the verdict and judgment are unsupported by the evidence, in that it appears therefrom that the deceased was guilty of contributory negligence in driving upon the appellant’s track in front of the approaching train which struck him, which was the proximate cause of his death, and, further, that the issue of discovered peril is not raised by the evidence. Chief Justice HARPER and myself are unable to concur in this view; but, in view of a reversal for the error in the charge above noted and of a retrial, we refrain from a discussion of the facts.

Associate Justice McKENZIE dissents, being of the opinion that the evidence is insufficient to support the judgment in the particulars noted, and that the cause should be reversed and rendered. He will later file an opinion setting forth his views upon this question.

Reversed and remanded for the error noted in the charge.

McKENZIE, J.

(dissenting).

In view of a reversal of the case for a new trial, I shall refrain from any comment upon the evidence, further than necessary in stating reasons why I think the case should be reversed and rendered.

On the north side of appellant’s right of way some heavy timber is growing, which obstructs the view of the right of way to those traveling the dirt road going to the south,. approaching the railroad crossing, until the right of way is reached. The right of way itself is free from any obstructions to the east, and the track is straight for a distance of about one-quarter of a mile, when the right of way and track curves to the south. There are two crossings testified to, the first at about 150 or 200 yards west of a section house; the section house being located at about the curve. The second is further west, at which the accident occurred. The testimony shows that the proper signal was given for each of the crossings. The signal for the first crossing was given before the train reached the curve, and the signal for the second crossing was given at the signal post, which is located about 700 feet east thereof. The train was a regular passenger train, consisting of six coaches, engine, and tender, and was running on regular schedule time, making about 55 or 60 miles per hour during running time. The engineer’s testimony is to the effect that he sounded the whistle for both of the crossings. • After sounding the whistle for the first crossing, giving the usual signal, he also sounded the whistle for Harrisburg Station, and immediately thereafter answered the signal of the conductor for stopping the train at Harrisburg Station by three blasts of the locomotive whistle, after which he sounded the signal for the second crossing at the 700-foot signal post. He further testified that his train was within 150 or 200 feet of Dozier when he first discovered him, and he immediately applied the emergency brake, opened the sand blower, and sounded the danger signal, using every means at hand to stop the train and avoid the accident. The train was brought to a stop at about 800 feet, and it could not be stopped sooner. According to my views, the undisputed evidence is conclusive to the effect that Dozier’s peril was not discovered in time by the train operatives for them to have avoided the accident or its results. The evidence, to my mind, is undisputed, and is conclusive to the effect that Dozier was guilty of contributory negligence, which negligence contributed to and was the cause of the injury.

I quote part of the testimony of S. L. Moore, who was a witness for plaintiffs: “I think it was along about sundown when that accident occurred, just a little before or after. * * * I did state a little while ago something with reference to Mr. Bonner in company with some others in an automobile who was coming towards Houston. I was going in the opposite direction from Bonner when I saw him, and so was Mr. Dozier. Mr. Dozier was ahead of us, and we had never passed him before getting to that track; we had never caught up with Mr. Dozier. Mr. Dozier was driving the mule, which was attached to a' light buggy, without a top. When we heard the train coming, we stopped. 1 did not hear the rumbling of-the train first; I was not attracted to it until I heard it whistle for a crossing, not this one, but the one beyond it. I don’t know whether that crossing where I first heard it whistle for is between the section house and the crossing that I was on or not, as I have never been down there; I understand, however, that there is a crossing down there, but I don’t know whether it is beyond or on this side. I did not state a while ago that when the train whistled it was my impression that it had passed the section house, not the first whistle it hadn’t, but the second whistle, 1 mean, for this crossing up here, and to attract his (Dozier’s) attention; there was something on the track, and I think that whistling was this side of the section house. When we heard that train whistle for the first time, we stopped, because we didn’t want to take any chances; we knew that was the evening train, and it run very rapidly; it is one of the special trains running from Galveston to Houston. I don’t know what the distance was from where we were to the track at that time (I didn’t measure that distance the other morning; I forgot to); but we were within, I will say, 100 feet of the track when we stopped. We stopped because we heard the train come. When we stopped we had noticed a vehicle ahead of us, but had paid no attention to him; I did not observe his (Dozier’s) danger until we had stopped. When we stopped because of hearing the train, we noticed him (Dozier); he then must have been about 15 feet from the track — well, I will say 20 feet from the track — that is, when we stopped, and I observed how close he was, and still going towards the track. Just about that time the train had commenced whistling for that crossing, and it continued to whistle — well, there was a little space of time between the time it whistled for that other crossing and the time it commenced to whistling for this one. When I looked and saw Mr. Dozier within about 20 feet of the track, just about that time the whistle began to blow for some alarm; I think it was about that time, and he (Dozier) was still approaching the track; he was approaching it slowly. Dozier was not whipping his mule at that time; I don’t think he was. The mule seemed to be just going slowly on; but I thought he was going to stop, and I says to Mr. Bartlett, I says, T believe,’ after I saw he was still approaching, ‘that old gentleman is going to try to cross,’ and the mule still kept going forward. At that time the mule had not yet reached the track, and about the time it did reach the track, or had almost reached the track, Mr. Bonner came across very swiftly in his automobile, and I think Mr. Dozier, seeing Mr. Bonner coming across so easily and so swiftly, concluded he could make it; of course that is just an opinion of mine. At any rate, when he was still 20 feet from the track, why, this whistling began; but he didn’t stop, just kept on going. At the point he then was he could have seen the train; I think lie could. At that time I thought he was going to stop; I didn’t see any reason brought to my mind, but I thought that any reasonable man would have done so. I thought there was reason for him to stop. As to whether I say he continued to go ahead, it didn’t seem he was urging the mule to go ahead; but he was going ahead though. I did not get the impression from looking at Dozier at the time that he was really looking, or that he had his head down. He seemed to be interested in something, but I don’t know whether the mule was stubborn, and he was trying to prevent the mule from going across or what, but he didn’t seem to urge the mule on until after the mule got onto the track; then he began to urge the mule. That was not before the buggy was on the track; but it was when the mule and buggy was on the track. The mule did not exactly stop them; but the mule didn’t go forward any. What I mean is, the mule just kept going sideways, back and forth. At any rate the mule got on the track, and the buggy was on the track, and the mule didn’t seem to go forward; it seemed he didn’t want to go forward. He was just mulish; that is 'it exactly. That mule seemed to want to go to one side instead of going forward; it didn’t seem as though he wanted to go down that little incline. You could hardly call that anything but a stop so far as the buggy was concerned; you might say that the buggy was stationary, and seemingly working back and forth. He did start up before being struck, and the mule went forward. At the time the buggy got onto the track Mr. Dozier got up and commenced “lamming” the mule, and he was lamming him for all he could. I don’t know whether he had a whip or just a stick. I am not absolutely sure that Mr. Dozier did not whip the mule before he got onto the track; I am not sure he didn’t strike the mule before he got onto the track, but I don’t think, I don’t think he commenced whipping the mule until he saw he was bound to get across to be safe. For 20 feet before he got to the track he could see the train coming. We heard the whistle blown, and could hear it blown for that space between the track — from that space from the track. I wouldn’t say whether the bell was ringing or not; there would have been some difficulty in hearing the bell ringing with the whistle blowing as it was. Mr. Dozier was almost on the track at the time Mr. Bonner came over the track; that is, the mule was, the mule Dozier was driving. X don’t think that Mr. Dozier was whipping the mule when Mr. Bonner passed over; but I think that about that time was when he concluded he could get across the track, or the mule had got on the track, and he thought his safety depended on his getting across the track, and that it was then that he commenced whipping the mule. At the point where I stated X stood at that time, that is, about 100 feet from the track, I could not see the train; that is, I couldn’t have a full view of the train as it approached. I could, however, recognize that there was a train. I knew it by its rumbling and its whistling, and I could also see through the trees enough to see that it was a train. I really don’t think that there are any trees on that right of way of defendant railroad company along there.”

I think the law is well established that the contributory negligence of Dozier in placing himself in a dangerous position upon the track at the crossing, under the circumstances detailed by the witness Moore, will prevent a recovery for death, caused by his being struck by the train, when it affirmatively appears, as I construe the evidence in this cause, that those in charge of the train did not actually see his danger in time to avoid the accident. The fact that the train operatives could have discovered Dozier’s peril in time to have avoided injury to him by the exercise of reasonable diligence does not make the defendant liable. The rule of discovered peril does not make the railroad company liable, unless the peril is actually discovered in time to prevent the accident, and liability does not commence until the peril is actually discovered. The burden is upon the plaintiffs to establish the fact that the train operatives discovered Dozier’s peril in time to have avoided the injury. In this, it seems to me, they have wholly failed.

The case is one in which it appears that all the facts pertaining to the accident are developed, and, if I am correct in the analysis of the evidence, the proper disposition of the case should be to reverse, and render judgment in favor of appellant. Because of the views which I entertain as to the showing of the evidence, I respectfully enter my dissent.

On Rehearing.

McKENZIE, J.

Upon a reconsideration of the evidence, I adhere to the views expressed in my dissenting opinion that Dozier was guilty of contributory negligence, and that the trial court should have so instructed the jury. Possibly there is in the record some evidence of such probative force as would authorize the trial court to submit the issue of discovered peril to the jury. I am of opinión, however, that the evidence strongly preponderates against such issue. It therefore becomes necessary to change the views I expressed in the dissenting opinion, and to now hold that the cause should be reversed and remanded for a new trial.

I concur with the majority of the court that the eighth paragraph of the court’s charge was error, in that it instructs the jury that the burden was upon the defendant to prove by a preponderance of the evidence the facts submitted as material to its defense.


author: MOURSUND, J.

text:
    HEIN v. CONSUMERS’ ICE & FUEL CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1914.)
    Appeal and Error (§ 742) — Assignments op Error — Sufficiency.
    Under rule 31 for the Courts of Civil Appeals (142 S. W. xiii), providing that to each proposition under an assignment there shall be subjoined a brief statement of the proceedings, sufficient to explain and support the proposition, and that it shall be sufficient to refer to the preliminary statement by page, statements under assignments of error complaining of the sufficiency of the evidence, which quote only one question to one witness, which is not found in the statement of facts, are insufficient, and the assignment will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by the Consumers’ Ice & Fuel Company against Henry Hein, Sr., and others. There was a judgment for defendants in justice court, and plaintiff appealed to the district court, and, from an adverse judgment there, the named defendant appeals.
    Affirmed.
    A. Winslow, of Laredo, for appellant. H. G. Dickinson, of Laredo, for appellee.

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

   MOURSUND, J.

Appellee sued appellant and Henry Hein, Jr., in justice’s court of precinct No. 1 of Webb county, for $159.50, alleged to be due upon open account by the Heins as partners, composing the firm of H. Hein & Son. Judgment was rendered against Henry Hein, Jr., and in favor of appellant, from which appellee perfected an appeal to the district court, in which judgment was rendered for $171.72 in favor of appellee against both of the Heins. Henry Hein, Sr., appealed.

Appellant, who, under oath, denied the existence of the partnership alleged by appel-lee, by his first assignment of error contends that the evidence fails to show that such a partnership existed at the time the account was made. The statement in support of the assignment consists only of one question to the witness Maekin and his answer thereto, and a reference to a page of the statement of facts. The question and answer appear to have been taken from the stenographer’s transcript, as we do not find same in the statement of facts. The same question and answer are offered as a statement under the second assignment of error, in which it is contended that the evidence shows that ap-pellee had notice prior to the making of the account that the partnership between the Heins had been dissolved. The assignments are not accompanied by statements made in accordance with rule 31 for the Courts of Civil Appeals (142 S. W. xiii) and need not be considered. We have, however, read the statement of facts and find that a partnership, as alleged by appellee, existed between appellant and H. Hein, Jr., prior to the accrual of the indebtedness sued upon, and that appellee sold ice to said firm. Appellant testified that said firm was dissolved before the account sued upon accrued, but admitted that no notice of the dissolution was published, and the evidence was conflicting upon the issue whether appellee had knowledge or notice of such dissolution. The court was authorized to find, and we find, in support of the judgment, that appellee had no knowledge or notice of such dissolution at the time the ice was furnished for which the indebtedness sued upon accrued.

The judgment is affirmed.


text:
    LAWSON v. HAMILTON COMPRESS CO.
    (Court of Civil Appeals of Texas. Austin.
    Dec. 24, 1913.
    Rehearing Denied Jan. 28, 1914.)
    1. Master and Servant (§ 270) — Similar Conditions — Guarding Machinery.
    In a servant’s action for injuries alleging negligence in not guarding compress machinery by a railing, the admission of testimony that a witness was familiar with compresses, and that he had never seen one in which that part of the machinery was guarded by railing, was erroneous.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.]
    2. Appeal and Error (§ 1052) — Harmless Error — Admission of Evidence.
    The erroneous admission of such evidence was harmless, where another witness was permitted to testify to the same fact without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-A177; Dec. Dig. § 1052.]
    3. Trial (§ 253) — Instructions—Ignoring Issues.
    In an action for injury to a minor servant, plaintiff’s requested charges as to his minority were properly refused, where they ignored the issue of assumed risk and contributory negligence, both of which were pleaded by the defendants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Master and Servant (§ 218) — Assumption op Risk — Appreciation op.Danger.
    It is not sufficient that the risk assumed is obvious and presumably known to a minor servant, but he must have sufficient discretion to appreciate the danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.]
    5. Master and Servant (§ 288) — Action for Injuries — Question for Jury —Knowledge of Danger.
    In the case of a minor servant, where the evidence is such that reasonable minds could not differ as to the fact that he knew and appreciated the danger or risk assumed, that issue may be ignored, but otherwise it is a fact for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]

      6. Master and Servant (§ 218*) — Assumption oe Risk — Knowledge oe Danger.
    Where the danger or risk assumed is obvious to a minor servant, his minority alone does not exempt him from the effect of his own negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.]
    7. Master and Servant (§ 153) — Master’s Duty — Warning.
    It is the master’s duty to warn a minor servant of the danger in approaching machinery about which he had not been in the line of his employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 314-317; Dec. • Dig. § 153.*]
    8. Master and Servant (§ 265) — Action for Injuries — Burden oe Prooe — Warning.
    In an action by a minor servant for injuries, alleging a failure to warn him of the danger from machinery, the burden is upon the master to show that he discharged such duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dee. Dig. § 265.*]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by C. T. Lawson for himself, and as next friend of his minor son, Walter Lawson, against the Hamilton Compress Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Chris Emmett, of Victoria, and Langford & Chesley, of Hamilton, for appellant. H. E. Trippet, of Hieo, and Eidson & Eidson, of Hamilton, for appellee.

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

   Findings of Fact.

JENKINS, J.

This is a suit by C. T. Lawson for himself and as next friend of his minor son, Walter Lawson, against appellee, to recover damages for personal injuries to said minor by reason of alleged negligence of appellee. At the date of the injury Walter Lawson was nearly 19 years old; he was well grown, and was a bright and intelligent boy, and had had some experience in running machinery. I-Ie had worked in a cotton gin, and, for a short time the year previous, at the compress where he was hurt. At the time of his injury he had been instructed by the foreman of the Compress Company to go upstairs and see if he could locate a noise being made by the machinery, which noise had been made ever since the compress was erected, but which had not theretofore been located. The location of this noise was not in the line of his employment, and he had not been warned of the danger in approaching the machinery where he was injured, nor in any other respect. Appellant alleged that appellee was guilty of negligence in maintaining defective machinery, and thereby causing the floor where he was hurt to vibrate, and in permitting the same to become greasy and slippery, and in not guarding the machinery by railing. Appellant went upstairs, as instructed, together with another employé, and went upon a platform and called to the other employé, saying that he thought he had located the place of the noise. The other employé came around toward appellant, who stooped to point to the place, the machinery was in motion and an arm, which was a heavy steel beam, was brought up and came down in the vicinity of appellant. Appellant started to raise up, and in doing so slipped and extended his arm towards a post to steady himself, and the arm of the machinery struck his arm, crushing the same, so that amputation became necessary. There was a verdict and judgment for appellee.

Opinion.

1. Appellant assigns error upon the action of the court in permitting the witness Jim Hackett to testify, over objection of appellant, that he was familiar with compresses, and that he had never seen one in which this portion of the machinery was inclosed or protected by railing. There was error in admitting this testimony. Railway Co. v. Evansich, 61 Tex. 3; Ry. Co. v. Rowland, 82 Tex. 166, 18 S. W. 96; Railway Co. v. Jones, 16 Tex. Civ. App. 179, 40 S. W. 745; Stewart v. Railway Co., 34 Tex. Civ. App. 370, 78 S. W. 979; Ry. Co. v. Smith, 87 Tex. 348, 28 S. W. 524; Ry. Co. v. Duncan, 88 Tex. 611, 32 S. W. 879.

2. This case, however, will not be reversed on account of the improper admission of the testimony above referred to, for the reason that another witness (Cantrell) was permitted to testify to the same facts without objection. Ry. Co. v. Smith, 153 S. W. 393; Ry. Co. v. Kindred, 57 Tex. 501; Lindsey v. White, 61 S. W. 440; Bonnell v. Prince, 11 Tex. Civ. App. 402, 32 S. W. 856; Green’s Dig. 746 (h).

3. Appellant’s second and third assignments of error as to the refusal to give special charges requested in reference to minority must be overruled, for the reason that the same ignore the issue of assumed risk and contributory negligence, both of which were pleaded by appellee. Ry. Co. v. Minter, 42 Tex. Civ. App. 235, 93 S. W. 516; Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 958; Ry. Co. v. Lacy, 153 S. W. 415.

4. Appellant assigns error upon the following portion of the court’s charge: “Assumed risk is the risk ordinarily incident to an employment in which one is engaged, and an employé of a compress company assumes the risk arising from dangers or defects which are known to him, or which are obvious or discernible by ordinary observation; and in this connection you are instructed that Walter Lawson, while in the employ of the Hamilton Compress Company, assumed as matter of law all of the risks of injury that were ordinarily incident to his employment ; and if you believe from the evidence that his injuries grew out of and were occasioned by a risk tbat was ordinarily incident to the employment in which he was then engaged, yon will return a verdict for the defendant.” The vice in this charge is that it ignores the minority of the plaintiff, the law in reference to which was correctly stated in the special charges reguested by appellant and above referred to. It is not sufficient that the danger is obvious, and therefore presumably known to the minor, but he must have sufficient discretion to appreciate the danger; and this is a fact to be determined' by the jury, and should be submitted to them in the charge of the court. Allen v. Shook, 160 S. W. 1091, decided at the present term of this court; Ry. Co. v. Brick, 83 Tex. 600-604, 20 S. W. 511; Ry, Co. v. Preacher, 59 S. W. 593-594; Laundry Co. v. Schuster, 159 S. W. 449; Oil Co. v. Gilliam, 151 S. W. 892; Henry v. McCown, 140 S. W. 1170; Manufacturing Co. v. Femelat, 79 S. W. 873; Ry. Co. v. Plummer, 57 Tex. Civ. App. 563, 122 S. W. 944.

In the case of a minor, as in all other cases, the evidence may be such that reasonable minds could not differ as to the fact that he knew and appreciated the danger. In such case it would not be error for the court to ignore the issue of minority. The cases cited by appellee do not announce a doctrine contrary to that above stated. In Krisch v. Richter, 130 S. W. 186, the court said that the danger was obvious to one of his age and in-' telligence. In such case minority alone does not exempt from the effect of negligence. In ' Biscuit Co. v. Scott, 142 S. W. 67, the court said that the minor understood the working of the paper cutter, and knew of its dangers. In Over v. Railway Co., 73 S. W. 536, the issue of minority was not raised in the trial court. In Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S. W. 375, 31 L. R. A. (N. S.) 1218, Ann. Cas. 1913A, 111, the injured party was not an employe of the Oil Mill Company, and the movement of the machinery by which he was injured was obvious to him; and it was held, under these circumstances, that it was not negligence in the Oil Mill Company to fail to warn him of the danger. In Freeman v. Garscia, 56 Tex. Civ. App. 638, 121 S. W. 887, it was held that where a minor possesses such a degree of intelligence as to appreciate the danger involved in his act, he is chargeable with contributory negligence, as any other person. In Whitney v. Ry. Co., 50 Tex. Civ. App. 1, 110 S. W. 70, it is said that plaintiff was of sufficient intelligence and discretion to know what he was doing and appreciate the consequences that might result from his act. In Railway v. Rodgers, 89 Tex. 680, 36 S. W. 243, it is said that the want of judgment to appreciate the danger was a question for the jury ; and Railway v. Phillips, 91 Tex. 281, 42 S. W. 852, simply calls attention to the law as announced in Railway v. Rodgers. These are all of the cases from this state cited by appellee, except the case of Laundry Co. v. Schuster, supra, which is authority for the proposition here-inbefore announced by us.

5. Appellee insists that the court did not err.in not submitting the issue of minority, for the reason that there was no proof that appellant was not warned of the danger. There is no evidence in the record that he was warned. It is the duty of an employer in such case to give the warning, and the burden is upon him to show that he discharged this duty. Ry. Co. v. Worden, 90 Ark. 407, 119 S. W. 830; Labatt on Master & Servant, vol. 1, § 291.

6. We are inclined to agree with appellant, as asserted in his propositions under the fifth assignment of error, that there was error in the charge of the court in ignoring the issue of defective machinery, and in assuming as a fact that appellant placed his hand too near the machinery, and also that he had a large glove on his hand. To say the least of it, the charge is not clearly framed in this regard, and should be corrected upon another trial.

For the errors above indicated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.