author: HENDRICKS, J.

text:
    ROBERDS v. LANEY.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.)
    1. Principal and Surety (§ 108) — Extension oe Note — Discharge oe Surety.
    An agreement by the payee of a note that the maker could pay the note at any time within a month was not supported by a consideration, so as to discharge the surety thereon.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 213, 218; Dec. Dig. § 108.]
    2. Alteration oe Instruments (§ 8) — 'Unauthorized Alteration.
    A change of a purported indorsement on the back of a note, originally indorsed thereon without authority, would not be an alteration of a contract.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 40-46; Dec. Dig. § 8.]
    3.Alteration oe Instruments (§ 25) — Actions — Pleading—Explanation oe Alterations.
    In an action by the payee of a note against the maker and surety, in which the surety claimed to be discharged by an exterjsion of the time of payment indorsed on the back of the note, plaintiff need not plead the real conditions as to the indorsement so as to make it unavailable, in anticipation of the introduction of the note in evidence, but could explain the apparent alterations in the indorsement when he put the note in evidence.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 216-229; Dec. Dig. § 25.]
    4. Appeal and Error (§ 499) — Statement oe Facts — Necessity.
    Objections to a charge cannot be reviewed where there is no approved statement of facts in the record showing whether the objections were presented before or after the charge was given to the jury, and no exceptions preserved to the overruling of such objections.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by W. W. Laney against J. C. Ro-berds and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Mathes & Williams, of Plainview, for appellant. Y. W. Holmes, of Plainview, for appellee.

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

   HENDRICKS, J.

Tbe appellee, W. W. Laney, sued L. G. Oxford and J. C. Roberds, tbe latter tbe appellant herein, in the county court of Hale county, upon a promissory note for the sum of $500, executed by Oxford as the maker and Roberds as the surety. The appellant, Roberds, alleged suretyship and that the maker, Oxford, and Laney, the payee, for a valuable consideration, extended the time of the payment of said note, thereby releasing him qs surety. The cause was tried to a jury, and, suretyship having been agreed upon, the court submitted the question of extension as to the release of the surety. The note is an ordinary negotiable instrument, providing for 10 per cent. interest from maturity and the usual 10 per cent, attorney’s fees. Laney, the payee, and the owner of the note, had left the note in a certain bank in Plainview, with other notes, for safe-keeping, and after maturity instructed the cashier of the bank to communicate by letter to the obligor and the surety that the note was due. Oxford, the principal obligor, paid to the cashier of the bank the sum of $150, who wrote upon the back of the note the following indorsement: “Paid on the within 4/22/10, $150.00. $50.-00 extended for thirty days and balance for six months. from now. No interest paid.” ' After. the $150 was paid into the bank, the payee procured the note from the bank, noticed the indorsement on the back of the note above mentioned, erased the word “now” with an indelible pencil, and wrote the word “maturity” just above, and inserted the figure “3” by the side of the figure “4,” and wrote the figure “7” upon, and covering, the figure “2” in the date “22,” and according to the alterations making the note read as follows: “Paid on the within (3) 4/27/10, $150.00. $50.00 extended for thirty days and balance for six months from maturity. No interest paid.”

On the question of the release by the extension, there is no contention by the appellant that there was an agreement for an extension of six months, but that $50 of the remaining principal of the note, after the sum of $150 had been paid, was extended for the period of 30 days. Appellant is insistent, construing the testimony of the appellee Laney in connection with the testimony of Oxford, the maker (who merely testified generally to an extension), that appellee agreed to forbear the term of 30 days, for a valuable consideration, his right to collect the note. The jury evidently disagreed with this construction of the testimony, and we are rather inclined to think, upon close reading of appellee’s testimony as a whole, that the agreement between him and Oxford was that Oxford was to pay the sum of $150, and that, if he paid within 30 days the sum of $50, the right of extension would accrue. It is conclusive that, while the $150 was paid, the $50 was never paid by Oxford. While a part of his testimony may be susceptible of the interpretation that he extended the time of the payment of $50 for 30 days, a jury could very readily construe the testimony that Oxford’s right was a privilege to pay the money within that time, and that the money could have been paid the next day. In this case, with reference to the extension, unless it is implied, there is nothing said as to the payment of interest during the period of extension; that is, if Oxford should have paid the $50 the next day after the agreement was made, whether he would have to pay interest for the whole period of the 30 days is no,t indicated. The ambiguity of the agreement is such, as w.ell as a consideration of it from other aspects, as to distinguish this case from the case of Benson v. Phipps, 87 Tex. 580, 29 S. W. 1061, 47 Am. St. Rep. 128, and, on account of being concluded by the jury’s verdict, the agreement is more within the purview of the case of Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, decided by Chief Justice Gaines, who also rendered the opinion in the Benson-Phipps Case. In the Bahn Case the trial court found: “That a few days after the note sued on became due, and just before it was assigned to the plaintiff, N. E. Pain presented same to defendant for payment, when said Stacey, as president of defendant company, requested that an extension of one week from that day be given on said note, and that the same be nor placed in the hands of attorney for collection until one week, and agreed, if this was done, that he would pay the note within that time,” etc. The Supreme Court, commenting on this finding, said: “Here the' creditor agrees to extend for one week and the debtor agrees to pay within the weeh. [Underscoring, ours.] I-Ie does not agree that he will not pay until the end of the week, or that in case he does pay he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor. * * * In the case before us it was the right of the company to pay at any time, notwithstanding Pain’s promise, and hence there was no consideration to support that promise.”

If the jury construed the agreement for extension that Oxford could pay within the month, hence, as in the case quoted, he could pay the $50 at any time within that period, and, if so, the consideration did not exist.

The appellant, however, asserts that when appellee made the alteration upon the instrument, which was admitted, it should have been rejected, upon objection, from the record. As stated, Oxford, the only witness testifying to the extension, except appellee, merely stated generally that he had procured an extension without indicating the terms of the agreement or the details of same. Appellee’s testimony, closely observed, is quite clear that the cashier of the bank did not have the right to indorse the extension upon the back of the note. Of course there are eases, but we do not believe that this is one, where .an agent, holding paper and having the right to make applications of payment, would have the apparent or real authority to agree to an extension for the payment of the principal or a part thereof. In this instance it may be that the cashier had the right to receive the $150; we are unable, bpwever, to deduce the authority in any way that he had the right to make any agreement of forbearance or indorse it upon the note. Appellee says when he erased the word “now” and substituted the word “maturity,” and made the other changes indicated, that he was confused as to his right to make the changes and stopped; what further change he would have made is not stated; that a short time after the $150 was paid he informed Oxford that he would make the indorsement on the note, but that when he got the note he found the original indorsement as mentioned. Ap-pellee’s testimony may be unsatisfactory on this point, however, if the indorsement upon the back of the note was not the real agreement between appellee and the principal of the note, and that the cashier of the bank had no authority to make any agreement for extension, and, the agreement indorsed upon the back of the note not having been made in accordance with the real agreement made, we think there could be no alteration.

A change of a purported indorsement upon the back of a note, placed there by one without authority to make the same, or to write it, could not be in law an alteration of a contract, hence would be required to be considered as immaterial; we also think it was not incumbent upon appellee to plead, in anticipation of the introduction of his note in evidence, the indorsement on the back of the note and assert the real condition and status for the purpose of making said memorandum unavailable. In this character of case, when he introduced the note he had a right to explain the apparent alterations on the back. Appellant also complains of error in the general charge of the court, but the record is in such condition as to make the assignments unavailable.

There are in the record what purport to be objections to the court’s charge, but there is no approved fact incorporated in the record as to when the objections were presented to the court’s charge, whether before or after the court delivered the same to the jury, and there is no preservation of exceptions of any action of the trial court overruling such objections. Quanah, Acme & Pacific Ry. Co. v. W. W. Galloway et al., 165 S. W. 546, decided March 14th; Mutual life Ins. Association of Donley County, Tex., v. Mrs. S. F. Rhoderick, 164 S. W. 1067, decided March 14th, by this court.

Finding no error in the judgment, the ease is affirmed.


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. CROWDER et al.

    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1914.)
    1. Carriers (§ 205) — Transportation of Animals — Quarantine Regulations.
    Where cattle are to be shipped from the quarantined area in Texas into the area outside the quarantine line, the duty of complying with the government regulations is primarily that of the shipper, so that if he has been relieved of the duty and the same has been imposed on the carrier, it is the shipper’s duty to plead and prove it; the dipping of the cattle before crossing the line being no ’ part of the contract of shipment.
    {Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 918, 920, 923; Dec. Dig. § 205.]
    2. Carriers (§ 227) — Transportation of Cattle — Quarantine Regulatio ns — Fail - ure to Fulfill.
    Where plaintiff contracted for the transportation of certain cattle from the quarantined area in Texas to outside the quarantine line, and failed to plead and prove that the carrier was charged with the duty of dipping the cattle or complying with the quarantine regulations, it could not be held for any damages resulting from the failure to dip the cattle or to deliver them at destination, because it was forbidden by law to transport them over the line.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    3. Carriers (§ 229) — Transportation of Animals — Co n versio n .
    Where a carrier was forbidden by law to transport certain cattle to destination over the quarantine line, and some of the cattle died and others were sold, at a point short of destination, the carrier’s conversion, if any, occur-' red there, and the measure of damages was the reasonable market value of the cattle at that point, and not at destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    4. Carriers (§ 229) — Transportation of Cattle — Sale.
    Where cattle are sold by a carrier under Rev. St. 1911, arts. 726, 728, authorizing such sale when cattle are unclaimed for 48 hours, there is no conversion, and the owner may only recover the balance of the proceeds after deducting expenses, etc.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    Appeal from Martin County Court; A. C. Eidson, Judge.
    Action by T. S. Crowder and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Douthit & Smith, of Sweetwater, W. L. Hall, of Dallas, and John B. Howard, of Midland, for appellant. A. L. Green, of Yan Horn, and S. W. Pratt, of Stanton, for ap-pellees.

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

       Rehearing denied May 14, 1914.

   HARPER, C. J.

This suit was instituted in the county court of Martin county, Tex., by T. S. Crowder and F. W. Flanigan, partners, composing the firm of Crowder & Flani-gan, plaintiffs below and appellees herein, against the Texas & Pacific Railway Company, defendant below and appellant herein, for conversion of a car load of cattle, consisting of 39 head, shipped from Lindale, Smith county, and consigned to Stanton, Martin county, on December 28, 1911, plaintiffs suing for the alleged total value of-said cattle in the sum of $953, plaintiffs alleging that they tendered said cattle to the International & Great Northern Railroad Company at Lin-dale, and entered into a written contract with said railroad company, whereby the latter contracted with plaintiffs to transport said cattle and deliver same to its connecting carrier the deféndant, the Texas & Pacific Railway Company, to be transported by tbe latter and delivered at Stanton to tbe plaintiff F. W. -Flanigan; that said International & Great Northern Railroad Company accepted and received said cattle, and transported them to Mineóla, and there delivered them to the Texas & Pacific Railway Company, but that the latter did not carefully transport and deliver said cattle to plaintiff at Stanton, as was its duty under the law, but instead retained possession of said cattle and appropriated same to its own use and benefit, to plaintiff’s damage in the total value of said cattle, amounting to $953. The defendant answered by general demurrer and general denial, and specially answered that if it sold or converted plaintiffs’ cattle, which it expressly denied, it did so for the reason that upon arrival of said cattle at Ft. Worth from Lindale, it became necessary, under the laws and quarantine rules and regulations of the state of Texas and of the United States, to dip said cattle in some mixture prescribed by said authorities before the same could be further transported towards their destination ; that upon arrival of said cattle at Ft. Worth the plaintiffs abandoned same, and refused to have anything further to do with them, or to authorize or require their dipping, as required by the authorities mentioned, and that this defendant was not authorized or required to have such dipping done; that said dipping of said cattle was also rendered impossible by reason of their poor, • weak, and thin condition at the time tendered the defendant for transportation, and at the time of their arrival at Ft. Worth. The cause was tried before a jury on June 20, 1913, and upon peremptory instructions from the court to find for the plaintiffs, the jury returned a verdict in favor of the plaintiffs for the sum of $750.

The appellant’s first and second assignments of error charge that the court erred: (a) In peremptorily instructing a verdict in favor of appellee; (b) in not giving peremptory instructions for appellant as requested. Its proposition being that the uncontroverted evidence showed that this is a suit for conversion of a car load of cattle from a point east of the quarantine line to a point west of the line; that the state and federal laws prohibit such shipments without the cattle being dipped, and that appellee failed and refused to comply with the said regulations, and thereby prevented the delivery of the cattle. The railway company was therefore not liable. Appellees’ counter proposition is that in the shipment of cattle, wherein it is necessary for them to be dipped before reaching their destination, and they are being transported without an attendant, it is the duty of the railway company to include in its shipping contract all necessary releases and authority for dipping them, and, having failed to do so, and such failure upon the part of appellant being the cause of nondelivery of the cattle at destination, the court did not err in instructing verdict for appellees. The appellees pleaded an express contract to safely transport the cattle in question from Lindale, a point east of the quarantine line to Stanton, a point west of the line, with no allegation that the contract so pleaded did not cover all the obligations of the railway company in connection with the cattle delivered.

The quarantine regulations provide that cattle originating in the quarantine area that have been dipped under the supervision of an inspector of the commission may be shipped by rail to any point west of the quarantine line, and further provides that no cattle shall be shipped from the quarantined area in Texas into the area west of such quarantine line unless they are free from fever ticks. Primarily, these regulations impose the duty of complying with them upon the shipper, and if the appellee in this case has been relieved of the duty, and the railway company is charged with it, it becomes a matter of pleading and proof,- and the burden is upon him, appellee, to plead and prove it, for the duty of dipping the cattle is no part of the contract of shipment. Clegg v. Gulf, C. & S. F. Ry. Co., 104 Tex. 280, 137 S. W. 112. And, appellees having failed to plead and prove that the railway company was charged with the duty, by contract or otherwise, the company cannot be held liable for any damages resulting from a failure to dip the cattle, and likewise not liable for failure to deliver the cattle at destination, because the railway company was prevented by law from further transporting the cattle.

However, the record is silent upon the question of conversion of the cattle, except that they were in the possession of the appellant at Ft. Worth, Tex.; that some died and others were sold. Since the law prohibited further transportation of the cattle, under the facts in this record, Ft. Worth was the point of conversion, if any there was, and the true measure of plaintiff’s damages, if the cattle were so converted, is the reasonable market value of the cattle there, and not at Stanton, Tex., as pleaded and proven by plaintiff, and which is assigned as error under the third and fifth assignments. For this reason the cause must be reversed and remanded.

If through the negligence or default of the railway company the cattle had not been delivered at point of destination, the rule would be as enunciated in the case of St. Louis, S. F. & T. Ry. Co. v. Adams, 55 Tex. Civ. App. 245, 118 S. W. 1155, but it was through no fault of appellant that the cattle were not transported to their destination; therefore, if converted, the true measure of plaintiff’s damages is their reasonable market value at Ft. Worth at the time of conversion with interest. Gulf, C. & S. F. Ry. Co. v. Cleburne Ice & Cold Storage Co., 79 S. W. 836. If the cattle were sold under the provisions of the statute (Rev. Civ. arts. 728 and 726, 1911), there would be no conversion, and the amount plaintiff should recover is fixed by the statutes cited.

The fourth assignment is disposed of by what is stated above.

Reversed and remanded.


author: WILLSON, O. J.

text:
    TEXAS NAT. FIRE INS. CO. v. WHITE, BLAKENEY & FULLER DRY GOODS CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1914.
    Rehearing Denied Feb. 19, 1914.)
    1. Insurance (§ 144) — Fire Insurance — Contracts — Modification — Acts Constituting.
    Where the insurer in a fire policy, cover-, ing a stock of merchandise while located in a designated building, agreed in a writing delivered to insured that the policy should cover the stock while in another building, and that insured could procure additional insurance, it could not deny liability on the ground that the writing was not attached to the policy, stipulating that no privilege affecting the insurance should be valid unless in writing attached to the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 273-275; Dec. Dig. § 144.]
    2. Insurance (§ 144) —Fire Insurance — Stipulations — Waiver.
    The act of insured, who procured a fire policy on a stock of merchandise while located in a designated building, in removing the stock to another building, was not a breach of the policy, and an agent without authority to waive breaches may agree to a modification of the policy so as to make it apply to the stock while in the second building.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 273-275; Dec. Dig. § 144.]
    3. Insurance (§ 144) — Contracts—Modification — Consideration.
    A modification of a fire policy covering a stock of merchandise while located in a described building so as to cover the stock when removed to another building is supported by a sufficient consideration, consisting of the forbearance of insured to demand a cancellation of the policy and a return of the unearned premium paid on it.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 273-275; Dec. Dig. § 144.]
    Appeal from District Court, Fannin County ; Ben. H. Denton, Judge.
    Action by the White, Blakeney & Fuller Dry Goods Company against the Texas National Fire Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    By a policy dated September 2, 1909, appellant, “in consideration,” it was recited therein, “of the stipulations herein named and of $25.00 premium and the payment in advance to said (insurance) company of a similar premium at its office in the city of Ft. Worth, upon the 15th day of the months of September and March in every year during the continuance of this contract,” insured appellees in the sum of $4,000 against the loss by fire, of their stock of goods, wares, and merchandise “while located and contained” in the one-story metal-roofed brick building known as the “Wilson building,” in Bon-ham, “and not elsewhere.” The policy contained this recital, “$30,000 total concurrent insurance permitted, including this policy,” and stipulations as follows : “(1) This entire policy, unless otherwise provided by agreement endorsed hereon, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. (2) In the event of loss by fire to the property covered under this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash value of each item of property covered by this policy (not exceeding the amount insured on each such item) at the time immediately preceding such loss, and in event of additional insurance, if any is permitted herein, then this company shall be liable for its proportion only of three-fourths of such actual cash value of each item at the time of the fire not exceeding the amount insured on each such item.” During the last two or three days of August and the first two or three days of September, 1911, appellees moved said stock of goods from said Wilson 'building to the two-story metal-roofed brick building about half a block away, known as the “Fuller building.” Afterwards, to wit, on October 19, 1911, on appellant’s demand therefor, appellees paid to it the premium due on the policy for the six months ending March 15, 1912. January 9, 1912, said stock of goods, then worth about $38,500, and insured by other companies than appellant in sums aggregating $29,000, was destroyed by fire. On the ground that the policy it had issued covered the goods only while they were in the Wilson building, and did not cover them while they were in the Fuller building, and on the ground that the insurance, including the amount of the policy in question, on the goods at the time they were destroyed, aggregated the sum of $33,-000, while by the terms of said policy appel-lees were entitled to have only $30,000 insurance on same, appellant denied any liability on its part on account of the loss. Thereupon appellees sued and recovered against appellant the judgment for $3,626 (being the amount, giving effect to the “three-fourths clause” set out above, found to be due on the policy), from which this appeal is prosecuted.
    On the trial appellees did not controvert appellant’s contention that it was not liable by the terms of the policy as it was originally written, ■ but insisted it nevertheless was liable as claimed by them because, as they asserted was true, while they were moving the goods appellant agreed the policy should cover same in the Fuller building, and at the same time agreed they might carry as much as $33,000 insurance on them. In support of their contention appellees White and Fuller as witnesses testified, in substance, that while the goods were being moved to the Fuller building appellees wrote appellant advising it of the fact and also of the fact that they wished to increase their stock and to carry a greater amount of insurance thereon than was permitted by the terms of the policy; and they further testified in substance, that a few days after appellees so wrote appellant they received a reply from it inclosing two slips or riders to be placed with or attached to the policy, one of which evidenced an agreement on the part of appellant that the policy should apply to the goods while in the Fuller building, and the other an agreement on its part that they might increase the amount of insurance as needed on the stock. Appellant denied receiving such a letter from appellees, or writing to them and agreeing as claimed by them, but the jury on special issues submitted to them found in favor of appellees’ contention; so, for the purposes of this appeal, it must be assumed that appellant made and delivered the slips to appellees as claimed by them. It was shown, however, that the slips had not been attached to the policy at the time the fire occurred, but, instead, had been placed on a hook in appellees’ office, and, with appellant’s letter accompanying them, had been destroyed by the fire that destroyed the goods.
    It appeared from the testimony of said appellees White and Fuller that the letter accompanying the slips or riders sent to ap-pellees was signed by appellant by its general manager, one Walker. Appellant contended in the court below, and contends here, that if the rider agreeing that the policy should cover the goods in the Fuller building was sent to appellees as they claimed it was, it nevertheless was not liable, because Walker did not have authority to so agree for it; and further that it did not become bound by that agreement nor the agreement permitting additional insurance on the stock of goods, because the riders had not been attached to the policy at the time the fire occurred. As supporting its contentions, appellant relied upon a stipulation in the policy as follows: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to wáive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and to such provisions and conditions no officer, agent or representative shall have such power or toe deemed or held to have waived such provisions and conditions unless said waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
    Goree & Turner, of Ft. Worth, for appellant. J. G. McGrady, of Ft. Worth, and Cunningham & McMahon, of Bonham, for appel-lee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-fJo. Series & Rep’r Indexes

   WILLSON, O. J.

(after stating the facts as above).

If, as appellees claimed and the jury found was true, appellant agreed in writing that the policy should cover the goods while in the Fuller building, and that appellees might procure additional insurance as they did, we think it should not be heard to deny liability on the ground merely that the slips or riders evidencing its agreement were never attached to the policy. It was not shown that appellees were authorized to so attach the slips. On the contrary, it appeared from the face of the policy that attaching them was as much an act solely to be performed by appellant as would have been the act of indorsing such an agreement on the policy. Therefore we think the delivery of the slips to appellees should be construed as a waiver by appellant of the provision in the policy requiring them to be attached to it. To hold otherwise, it seems to us, would be to say that appellant in making and delivering the slips as it did was attempting to mislead appellees to believe it intended thereby to bind itself by a valid contract, and so to perpetrate a fraud upon appellees. Appellees, we think, had a right to assume appellant was acting in good faith, and when, without first demanding the policy and attaching the slips to it, and without conferring upon them authority to so attach same, it delivered the slips to them, it intended thereby to bind itself, and to waive the requirement of the contract that the slips should be attached to the policy. To permit appellant after a loss occurred to claim it was not liable merely because the slips were not so attached, under the circumstances stated, we think would be very unfair to appellees, and the countenancing as proper, conduct on the part of appellant calculated to induce, and which doubtless did induce, appellees to believe it intended to bind itself to .indemnify them against loss of the goods by fire while in the Fuller building, and therefore to forego exercising their right to have the policy canceled and a new one issued. We do not think either principle or authority demands the recognition of a right existing in appellant to make such a claim. New Orleans Ins. Ass’n v. Griffin & Shook, 66 Tex. 232, 18 S. W. 505; Wagner & Chabot v. Insurance Co., 92 Tex. 549, 50 S. W. 569; Insurance Co. v. Hardin, 151 S. W. 1152.

The other contention made by appellant, to wit, that it was not bound by the agreement that the policy should apply to the goods while in the Fuller building, because its agent who made it was not authorized to waive the provision in the policy which restricted its operation as indemnity against loss of the goods by fire only while they were in the Wilson building and not elsewhere, we think also should be overruled. The question made by the testimony relevant to' this phase of the case was not one as to a waiver or not by appellant of a right it had to declare the policy invalid because of the removal of the goods from the Wilson building; for it did not have such a right. The removal of the goods was not a breach by appellees of any term of the contract. Therefore there was nothing for appellant to waive. Assurance Co. v. Miller, 91 Tex. 414, 44 S. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901; Hollings v. Bankers’ Union, 63 S. C. 192, 41 S. E. 92; Thompson v. Gorner, 4 Cal. Unrep. 606, 36 Pac. 434; Insurance Co. v. Lumber Co., 11 Okl. 585, 69 Pac. 938; San Bernardino Ins. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487. The question made by the testimony, we think, was one as to whether or not the transaction evidenced by the slip created a new contract between the parties, or, what in legal effect would be the same thing, so modified the old contract as to make it apply to the goods while in the Fuller building. We think the effect of the transaction was to so modify the contract. If it was, then it cannot be doubted that appellant’s manager as such had power to bind it by the agreement he made for it in its name. It is clear he might have canceled the policy and bound appellant by the issuance of another one covering the goods while in the Fuller building. If he might have done this, then certainly he might have accomplished the samé thing by agreeing that the old policy should cover the goods in their new location. The objection made that it did not appear that there was a consideration for such a modification of the contract clearly is without merit. Appellees might have demanded a cancellation of the policy as originally written and a return to them of the unearned premium paid on it. Their forbearance to do this alone was a sufficient consideration for the undertaking on the part of appellant that the indemnity provided by the policy should apply to the goods in their new location.

We think there is no error in the judgment, and therefore will affirm it.


author: HODGES, J.

text:
    WELLS FARGO & CO. v. BENJAMIN.

    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 11, 1914.
    Rehearing Denied March 19, 1914.)
    1. Negligence (§ 136) — Actions — Juey Question.
    In an action against an express company for injuries by a box falling off of an 'express truck and striking the plaintiff, evidence held to make it a jury question whether the truck was negligently handled.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    2. Negligence (§ 134) — Actions—Sufficiency OE EVIBENCE — CONTRIBUTORY NEGLIGENCE.
    In an action against an express company for injuries- by a box falling off of an express truck and striking plaintiff while he was walking along a station platform, evidence held not to raise the issue of contributory negligence.
    nuu. jAuie. — nor outer cases, see ¿Negligence, ' "" 267-270, 272, 273; Dec. Dig. § Cent. Dig. 134.]
    3.Negligence (§ 122) — Contributory Negligence— Prooe.
    Contributory negligence must be proved and cannot be presumed.
    [Ed. Note. — For other cases, see Negligence, Cent.] Dig. §§ 221-223, 229-234; Dec. Dig. §120

    4.Negligence (§ 136) — Contributory Negligence-Jury Question.
    To justify the submission of contributory negligence to the jury, there must be sufficient evidence to support a verdict finding that plaintiff was guilty of contributory negligence as charged.
    [Ed. Note. — For other cases, see Negligence Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    5.Negligence (§ 122) — Contributory Negligence-Presumptions.
    In the absence of contrary evidence, it must be assumed that plaintiff conducted himself as a prudent person should have done under the-circumstances.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. §, 122.]
    6. Negligence (§ 141) — Instructions—Contributory Negligence.
    In an action against an express company for injuries by being struck by a box falling from a truck while plaintiff was walking along a depot platform, in which defendant alleged contributory negligence in walking or standing near the truck when there was a safe way foi-plaintiff to use, the court instructed what would constitute contributory negligence, and that it was plaintiff’s duty to exercise ordinary care-in walking upon the platform to avoid injury, and, if he failed to exercise ordinary care for-his own safety “at the time and place and under the circumstances,” the jury should find for defendant. Held, that the charge on -contributory negligence was sufficient, so that it was not prejudicial error to refuse a charge that if plaintiff was walking- or standing by the moving truck, and one of ordinary care under the same circumstances would not have done so, the jury should find for defendant.
    [Ed. Note. — For other cases, see Negligence,. Cent. Dig. §§ 382-399; Dee. Dig. § 141.]
    7. Trial (§ 260) — Instructions—Requests— Matters Already Covered.
    It was not error in a personal injury action, in which the court charged all of the recoverable elements of damages, to refuse a requested charge that, in estimating the injury-which plaintiff may have sustained by his diminished capacity to labor and earn money in. the future, the jury should consider his age at the time he was injured, which was 56 years, since the jury would naturally take that into-consideration without being specially charged, to do so.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    8. Trial (§ 260) — Instructions—Requests. —Personal Injuries.
    A requested charge, in a personal injury action, not to allow damages for permanent injury unless the jury found that plaintiff was. probably permanently injured was properly refused, though the charge given did not refer to ‘‘permanent” injuries, where it did submit all of the proper elements of damage; it not being proper to charge separately on each element of damage that it must be proven by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 051-659; Dec. Dig. § 260.]
    9. Damages (§ 173) — Evidence — Earning Capacity — Remoteness of Time.
    In an action for personal injuries to one who was an expert saw filer, it was not error to permit plaintiff to testify, as against an objection of remoteness in time, that for the last 20 or 25 years, “taking it right through,” he had earned about $8 a day, since his answer referred to the time he was injured as well as to the years past.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 173.]
    10. Witnesses (§ 361) — Impeachment—Sustaining Reputation.
    In an action for personal injuries, in which plaintiff testified that he was still suffering from defective eyesight, impaired hearing, restlessness at night, general weakness, etc., a physician testified for defendant that he had examined plaintiff and treated him when he was taken to the hospital after the injury, and in his opinion plaintiff had entirely recovered, and another physician testified that he thought plaintiff was entirely well and believed he would improve all right after the litigation was stopped. Eeld, that such evidence contained an im-pheation of fraud by plaintiff in feigning injury and constituted an impeachment of plaintiff’s credibility so as to admit evidence of plaintiff’s good reputation for truth, etc.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    11. Appeal and Error (§ 1170) — Harmless Error — Admission of Evidence.
    In view of the Court of Civil Appeals rule 62a (149 S. W. x), prohibiting reversals unless the error probably caused the rendition of an improper judgment, any error in admitting evidence as to plaintiff’s good reputation for truth, etc., when his reputation.had not been impeached, was not reversible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    12. Witnesses (§ 318) — Character Evidence —Admissibility.
    It is error to admit evidence sustaining a witness’ reputation, if such witness has not been impeached.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. § 318.]
    13. Appeal and Error (§ 1031) — Harmless Error — Presumptions of Error.
    Courts of Civil Appeals rule 62a (149 S. W. x), prohibiting reversals unless the error complained of amounted to such a denial of appellant’s rights as probably caused the rendition of an improper judgment, abolished the presumption that injury results from an erroneous ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.]
    14. Appeal and Error (§ 102S) — Harmless Error — Power of Courts.
    Appellate courts have inherent power to decide that an error was harmless and to refuse to disturb a judgment because of it, when they believe that a proper judgment was rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4034; Dec. Dig. § 1028.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by W. S. Benjamin against Wells Fargo & Co. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Young & Stinchcomb, of Longview, Beard & Davidson, of Marshall, and Baker, Botts, Parker & Garwood, of Houston, for appellant. S. P. Jones, of Marshall, for appellee*

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

       Application for writ of error pending in ■Supreme Court.

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

   HODGES, J.

W. S. Benjamin, the appel-lee, sued and recovered a judgment against the appellant for the sum of $20,000 for personal injuries received on the 24th of October, 1911. The material facts proved upon the trial are substantially as follows: On the date above mentioned the appellee was stopping at a hotel in the city of Marshall, Tex., and was expecting to leave that place within a short time for some point in California or Mexico. He was a saw filer by trade, and was going to one or the other of those places with the expectation of finding employment. Soon after his arrival in Marshall, he went from his hotel to the ticket office of the Texas & Pacific Railway Company, located at its passenger depot, for the purpose of making some inquiries about rates. Upon arriving at the ticket office, he found it crowded, and concluded to wait till later in the day. He then went to a mail box, posted some letters, and started back to his hotel, walking east along the depot platform. The track of the Texas & Pacific Railway Company at that point runs east and west, and the depot platform was about 36 feet wide and lay on the south side of the railway tracks. South of the platform and near its east end was located the office of the appellant. Next to this office on the west was an unoccupied space, then came the baggageroom and the waiting rooms for white and colored passengers. Next to the platform, and between portions of those two waiting rooms, was the ticket office, and at its northwest corner was located the mail box, where the appellee posted his letters. The doors of these various rooms opened on to the depot platform. The Texas & Pacific passenger train had backed into the station with its rear end pointing east, and about opposite the entrance to the baggageroom. The express car was some distance farther west. As the appellee was walking east along the platform toward his hotel, a truck belonging to the appellant, loaded with boxes- and express packages, -was being pulled by one of its employés out of the office and west toward the express car. Just as the truck passed the appellee, a box fell off and struck the appellee on the side of the head, knocking him down and rendering him unconscious. Appellee testified that he remembered nothing after posting his letters till lie-awoke some hours later and found himself in a hospital, to which he had been carried immediately after the accident. Most of the witnesses testified that the appellee was between the truck and the railway track at the time he was injured, and some of them say that he fell over on the track. One witness, however, says that appellee was on the south side of the truck, between it and the waiting roqm. The depot platform was at the time thronged with the usual crowd to be found there at train time.

The petition charged negligence in loading the truck and in the manner in which it was handled at the time. The court submitted negligence in both of these respects as grounds for recovery. The testimony showed that the boxes and packages on the truck after it was loaded extended from six to ten feet above the ground. No question is here made of the sufficiency of the evidence to support a finding that the truck was negligently loaded, but in the first three assignments of error appellant contends that the evidence was not sufficient to warrant the submission of the issue of negligence in the manner of handling the truck.

These assignments are based upon the refusal of the court to give a special charge instructing the jury that there was no evidence that the truck was negligently handled, and upon the action of the court in submitting that issue in the main charge. It was shown that the platform was smooth and in good condition; that on this occasion the truck was handled by one man pulling it along; and that it did not start out of the express office until after the arrival of the train. Some of the witnesses stated that, in going out of the office onto the platform, the truck was pulled north, and then turned west toward the express car; that just as it made the turn the box fell off on the north side and struck the appellee. It is true there is no direct evidence that the truck was being moved rapidly, or that it was jerked in such a manner as to cause the box to fall, but the fact that the box fell just, as the turn was made is a circumstance which should not be ignored. The jury had a right to conclude that with a load of that character — boxes and packages piled high above the bed — being carried through a crowd of people whose attention was diverted by the usual excitement attending the arrival of trains, an additional attendant should have been provided to accompany the truck for the purpose of holding the load in place and preventing any of it from falling off while being thus transported, and to notify people of any danger that might be present. To pile boxes to a height which the evidence shows was done in this instance, and pull them through such an assemblage of people at such a time, without taking such precaution, might well be regarded as the omission of an important duty due to the public on such occasion. The evidence shows that on several other occasions, with similar loads, boxes or packages had fallen from the top of the ! truck. That was sufficient to put the em-ploySs of the appellant upon notice that such an accident might again occur. We think there was sufficient evidence to justify submitting the issues.

The next group of assigned errors complain of the refusal of the court to give special charges on the issue of contributory negligence. The appellant pleaded that the ap-pellee was guilty of contributory negligence in walking or standing near the truck. It also pleaded that there was a safe way for the appellee to use upon that occasion, and that in passing the truck he was guilty of negligence in choosing an unsafe way and in walking or standing by the truck. The first special charge upon this issue to which our attention is called is as follows: “Xou are instructed that if you find from the evidence that the plaintiff was walking or standing by the moving truck at the time he was struck, and that a person of ordinary care, under the same circumstances, would not have walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it.” Other charges refused present different phases of the same issue. The court gave the following as a part of his general charge on the subject of contributory negligence, to which no objection has been presented: “Contributory negligence, in its legal signification, is such an act or omission on the part of the plaintiff amounting to a want of ordinary care and prudence as concurring or co-operating with some negligence on the part of the defendant as the proximate cause or occasion of the injury complained of.” “If you should fail to find that such injury was inflicted upon plaintiff by reason of the negligence of the defendant, it will be your duty to return a verdict for the defendant; or, if you should find that the injury was inflicted on plaintiff by reason of defendant’s negligence, and you should further find that the plaintiff himself was guilty of contributory negligence, as that term has been heretofore explained to you, then and in that event it will be your duty to find a verdict for the defendant. It was the duty of the plaintiff to exercise ordinary care in standing or walking upon the platform and the premises at the time and place of the accident to avoid injury to himself, and for his own protection, and, if the plainüff failed to exercise ordinary care for his own safety a,t the time and place and under the circumstances of this case, then you will find for the defendant. In this connection, you are further instructed that the plaintiff would not be charged with the duty of anticipating and avoiding any negligence on the part of the defendant, but that it was his duty to so conduct himself and care for himself as to avoid any injury that he may have known, or by the exercise of ordinary care should have known, to exist by reason of the negligence of the defendant, if any, and also to avoid any injury that might result to him in the ordinary operation of its business.” It is contended that this charge was not sufficient; that appellant had the right to have the specific facts relied on as constituting contributory negligence grouped and presented to the jury as expressed in the special charge quoted. In support of this contention we are referred to the M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058, and other well-known cases in which that principle is announced.

The important question to be first considered is: Does the evidence adduced upon the trial raise the issue of contributory negligence? Contributory negligence, like any other character of negligence, cannot be presumed ; it must be proved. Before the court should submit such an issue, there must be sufficient evidence to support a verdict founded upon a finding that the appellee was guilty of negligence contributing to his own injury in the manner charged. Just what distance Benjamin was from the truck at the time the box fell is not shown, but it is certain that he was standing or walking near enough to be struck by the box as it fell. According to his testimony, he remembers nothing that occurred after posting his letters till he had been removed to a hospital. He is therefore much in the same position with reference to presumptions regarding his conduct immediately before the injury as if he had been killed by the accident.

We must therefore assume, in the absence of evidence to the contrary, that he conducted himself as a prudent person should under the circumstances. Texas & Pacific Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; I. & G. N. Ry. Co. v. De Bajligethy, 9 Tex. Civ. App. 108, 28 S. W. 829; Riska v. Union Depot Ry. Co., 180 Mo. 168, 79 S. W. 448; Wilson’s Heirs v. Railway Co. (Ky.) 86 S. W. 691. In the Shoemaker Case there was a collision between the railway train and two boys, resulting in the death of the latter. It was sought to show negligence on the part of the railway company by circumstances alone; there being no direct evidence of a want of proper care. After quoting some authorities, Justice Williams says: “Our reference to the last case makes it proper for us to say that there is no presumption that the deceased were guilty of contributory negligence, and that the burden of proof was not upon plaintiffs to show that the deceased were not so guilty.” In Riska v. Railway Co., cited above, the court used this language in quoting from a previous Missouri decision: “The presumption of due care always obtains in favor of plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another.” After some other quotations, the court continued: “It was held in Crumpley v. Hannibal & St. J. Ry. Co. [lll Mo. 152], 19 S. W. 820, that one crossing a railroad track at a public crossing will be presumed to have exercised due care and diligence, in the absence of evidence to the contrary, and that such person also has a right to assume that the statutory signals will be given, and to so act.” That language was used in discussing the issue of contributory negligence in a case where the injured party had been killed by the collision. In Wilson’s Heirs v. Railway Co., also referred to above, the court says: “It is not contended the plaintiff was negligent in any respect, except failing to look for the coming train before going upon the railroad. Whether either she or Henry Conrad did so look could not, for the reason before indicated, be shown by direct testimony. Therefore it was the peculiar province of the jury, not of the court, to determine that question from facts and circumstances proved, for whatever may be the rule elsewhere, it has been definitely settled by this court that it is not to be presumed, in the absence of evidence as to the care exercised by a person injured or killed on a railroad, where he had a right to be, that he recklessly or carelessly imperiled his own life.” This rule is evidently based upon the assumption that the natural instinct of self-preservation will cause one to guard his own safety, and that it will be assumed that the usual and ordinary precautions were observed in the absence of opposing facts. We must therefore assume that in approaching the loaded truck Benjamin observed such precautions as a prudent person would have observed under the circumstances, unless other facts lead to a contrary conclusion. These are the facts relied on: One witness testifies that Benjamin was walking along upon the platform, going east, when the box fell off. Another stated that he thought Benjamin had stopped and was standing talking to some one at the time. Benjamin was upon the platform, where he had a right to be, and there is nothing to show that the peril he encountered was indicated by anything except the height to which the packages were piled upon the truck. Let us suppose that the court had submitted special issues of fact, and had propounded to the jury the question: Was Benjamin guilty of negligence contributing to the injury in walking or standing near the truck? Let us assume also that an affirmative answer had been given by the jury to this question. Gould it be said that there was any support for such a finding in the evidence referred to? We think not. There is no fact or circumstance shown that is inconsistent with the exercise of proper care on the part of the appellee.

But, if it could be said that the issue of contributory negligence was raised, we think, under the peculiar facts of this case, that defense was sufficiently presented in the general charge of the court. The jury were there told just what it took to constitute con-tributary negligence. They were further told that it was the duty of the plaintiff to exercise ordinary care, in standing or walking upon the platform at the time and place of the accident, to avoid any injury to himself, and that, if he failed to exercise ordinary care for his own safety at the time and place and under the circumstances, to find for the defendant. The words “time,” “place,” and “circumstances,” under the facts of this case, could be referred to nothing except standing or walking near the truck at the time of the accident. No jury of ordinary intelligence would make any other application of the charge. Hence there is an entire absence of any probability that the appellant was in any way prejudiced by the refusal of the court to give its special charge, even if a charge on contributory negligence was called for.

On the measure of damages the court gave the following charge: “You are instructed that, in estimating the damages, if any, you should consider the time lost, if any, as proximate result of the injury, decreased capacity to earn money in the future, if any, and the mental and physical suffering endured in the past, if any, and the mental and physical suffering that will be endured in the future, if any, but in this connection you are instructed not to consider anything ag an element of damages, in making your verdict, which you do not believe from the evidence was the direct and proximate result of the injury received on account of the negligence of the defendant, if any. If you should find for the plaintiff, you will find for him in such sum of money as, if paid now, will fairly compensate him for the injuries he has sustained as the direct and proximate result of said injuries, if any, taking into consideration the time lost, if any, his decreased ability to earn money in the future, if any, the mental and physical suffering he has endured, or may hereafter endure, if any, by reason of said injuries.” It is insisted that this charge was incomplete, and appellant presented a special charge in effect telling the jury that, in estimating the injury which the appellee may have sustained by reason of his diminished capacity to labor and earn money in the future, they should take into consideration his age at the time he was injured. The evidence showed that at the time of the injury the appellee was about 56 years of age, and it was agreed by the parties that his life expectancy was 17 years. It was also shown that he was an expert saw filer, and during the last 20 years had been earning from $5 to $8 per day, and in some instances more. According to appellee’s own testimony and that of some of his witnesses, he was totally disabled, and there was no probability that he would ever again be able to carry on his trade or calling. In undertaking to estimate the probable loss a person entering upon the decline of life will sustain by loss or impairment of his ability to earn money in the future, the consequences of advancing age should be considered, and a proper allowance made when it is shown that age alone would have diminished the future earning capacity of the injured party. While there might have been no impropriety in giving the requested charge, it would be difficult to say that appellant was prejudiced by its refusal. It requires no expert knowledge of the law to understand that such a fact should be considered. The jurors are familiar with the consequences of advancing age, and in a proper case their practical judgment may be relied on to make a just allowance therefor.

The appellant also requested the court to charge the jury that if they found for the plaintiff not to allow him any damages for permanent injury, unless they found by a preponderance of the evidence that he was probably permanently injured. The terms “permanent injury,” or any equivalent expression, were not mentioned in the court’s charge. Under the instructions given, the court submitted the proper elements to be considered in estimating the damages to be awarded. There was no reason for selecting that particular element and telling the jury not to allow a recovery for it, unless that character of injury were proven by a preponderance of the evidence. That duty is sufficiently enjoined in the charge given. There would be as much propriety in selecting, one at a time, each of the other elements of damage, and instructing the jury not to allow for any of them unless proven by a preponderance of the evidence, as there would have been in giving this charge.

Over the objection of the appellant, the court admitted testimony to show what the appellee had earned in his calling several years preceding the injury. Bill of exception No. 2 shows that, while the appellee was on the stand, he was asked the following question: “Q. During the time you have been saw filer over ten years with one man, and the remaining time with various other mills, about what were your earnings as a saw filer?” To this he answered: “I have earned about $8 a day for the last 20 or 25 years, taking it right through. Eirst-class saw filers can command from §12 to $15 a day any time at the large mills. At the Brainerd Lumber Company we cut over a million feet a day for 10 years.” Bill of exception No. 5 shows that while Geo. A. Cook, a witness for the appellee, was on the stand he was asked this question: “During the time that Mr. Benjamin worked for the Brainerd Lumber Company, in what capacity did he work, and what wages or fees or earnings did he receive for his work?” To this the witness answered: “Mr. Benjamin was employed as gang filer and hand filer, and at times millwright work. His wages varied from $6 to $21 a day.” In addition to this Cook testified, without objection, as follows: “He was what was considered a first-class A No. 1 filer. The Brainerd Lumber Company considered him the best. I did know Bis habits. He was strictly sober, industrious, healthy. Never knew him to lose a day in that 10 years. His ability was A No. 1. His daily, weekly, and monthly wages varied from time to time, relative to •the different parts of the mill he cared for and the different saws he filed. We considered him superior to the average, and as good if not better than the best.” On cross-examination the same witness stated: “Mr. Benjamin commenced work for the Brainerd Lumber •Company in May, 1895; and the last work that he did for them, as near as I can remember, was August, 1905. * * * Mr. Benjamin had a contract with the company, and had assistants as his work required. Mr. Benjamin paid the helpers out of his •contract price. At times we might have paid his helpers, charging the amounts to his account. At times, however, Benjamin had no helpers; at other times one; sometimes two; and occasionally three. When he was working for $6 a day he had no helpers; when working for $10 a day he usually had one helper; when working under contract at $17 a day he usually had two helpers; and when at $21 three helpers.” The testimony contained in the bill of exceptions was objected to upon the ground that it was too remote, relating to a time too long prior to the accident, and was therefore not a proper guide for ascertaining what the plaintiff’s earning capacity was or would be at the time of the injury. We can see no impropriety in permitting the appellee to state that for the last 20 or 25 years, “taking it right through,” he had earned about $8 per day. Whatever may be said of the question propounded to him as an effort to elicit remote facts, his •answer stated facts down to the very date of his injury, and in such a manner as to exclude anything objectionable. The purpose in admitting evidence of past employment and earnings in any case is to enable the jury to determine what the future earnings would have been but for the injury. Any past employment, and its compensation, which may fairly and legitimately throw light upon what the probable future earnings would have been, should be admitted for that purpose. There is no fixed rule as to time or subject-matter in such inquiries. Both must be sufficiently related to the probable future employment of the injured party to be reasonably considered as guides. In cases where there has been no change of employment, as is shown in this instance, the remoteness of the transaction offered in evidence should be determined more by the similarity of the conditions than by the lapse of time. Here we have the ease of a man having followed the same employment for more than 20 years, and, for aught that appears to the contrary, he expected to continue in it the rest of his life. His earnings were estimated by the day, and during that time appear to have undergone no appreciable changes except such as were attributed to temporary commercial conditions. It doubtless would have been improper to take the employment of the appellee by the Brainerd Lumber Company 10 years before, isolated and alone, as a guide for determining his future .earnings. But when that period is referred to merely as a link in a continuous chain of service in the same line of business extending back from the date of the injury, we can see no prejudicial error in getting it before the jury. With the entire business earrer of the appellee before them, the jury, as men of ordinary discretion, would be expected to use common sense in making their estimate for the future.

Over the objection of the appellant, one witness was permitted to testify that the reputation of the appellee for truth and veracity when he lived in and around Brainerd, Minn., was good. The objections urged were that the time was too remote, and that there had been no attack upon the reputation of the appellee. The court approved the bill of exceptions, with the following qualification: “That the defendant, when the' objection referred to was made, stated that it had not attacked the general reputation of the plaintiff for truth and veracity, or for honesty and fair dealing; that the plaintiff’s attorneys then stated in open court, if the defendant disclaimed having made any attack upon the plaintiff’s character and standing with respect to honesty and fair dealing, truth and veracity, that the testimony would not be offered. Then counsel for defendant stated that he would not make that statement, but reiterated his objection to the testimony.” It is insisted by counsel for appellee that this testimony was proper because Benjamin’s credibility had 'in fact in a manner been impeached. The record shows that the evidence of the diseased condition, from which the appellee claimed at the time to be suffering, consisted mainly of facts that lay peculiarly within his own knowledge. For instance, he complained of defective eyesight, impaired hearing, a continual roaring in his head, numbness of his limbs, restlessness at nights, dizzy sensations, and general weakness. Drs. Kittrell and Collum, witnesses for the appellant, testified that there were no external evidences of any physical basis for these symptoms; that in their opinion the appellee was suffering from traumatic hysteria; that his troubles were purely imaginary. Dr. McCurdy, a witness for the appellant, testified that he had examined the appellee and treated him when taken to the hospital after the injury; that in his opin-, ion the appellee had entirely recovered. Dr. Moore, another witness for the appellant, testified that he saw the appellee soon after the injury and while in the hospital; that when appellee arrived at the hospital he was mentally confused, but not unconscious; that upon examination witness found an abrasion on the side of the head about the temple, but no evidence of a fracture. Prom what the witness knew of the case he thought appellee was entirely well, and if there was no litigation about he would be all right. On redirect examination he stated: “I have seen Benjamin several dozen times since the injury, walking about on the street since leaving the hospital. Q. Prom what you saw of his condition there, and when he was there, and now, what is your opinion as to whether he would recover after the termination of the litigation? A. I believe he will improve after the litigation is stopped.” Neither Dr. McCurdy nor Dr. Moore gave it as their opinion that any hysteria or imaginary trouble existed. The testimony of the last two witnesses not only tended to contradict the facts testified to by Benjamin regarding his condition at the time of the trial, but carried with it the imputation that he was feigning injury for the sole purpose of securing damages. Such an implication of fraud might well be regarded as an impeachment of his credibility. That counsel for appellant expected to profit by such an inference as a legitimate result of such testimony is made evident by their refusal to make the disclaimer upon the conditions referred to in the bill of exceptions. Under the circumstances, we think the sustaining evidence was properly admitted.

But even if it should be held that there was no evidence tending to impeach the appellee, and no legal basis furnished for the introduction of sustaining evidence, we should not feel disposed to reverse this judgment solely upon the ground that the testimony was admitted. Counsel cite a number of cases in which the doctrine is clearly announced that it is error to a'dmit sustaining evidence when the witness in whose favor it is offered has not been impeached. There can be no question that such is and has been the established law. In only two of the cases referred to was the judgment reversed upon that error alone. These are Young v. Sheppard, 40 S. W. 62, and Harris v. State (Cr.App.) 45 S. W. 714. In the first case the suit was for damages resulting from a libelous publication. Before closing his evidence, the plaintiff was permitted to prove that his reputation for honesty, truth, and veracity was good. The court held that under the facts of that case, “the testimony being so nearly balanced, the testimony as to the character of the appellee undoubtedly had its influence upon the jury.” In that case injury to the reputation of the plaintiff, the party sustained, was the subject-matter of the suit. It does not appear from the report of the case that he had testified in the case. It is to be inferred from the language used in the opinion that the evidence as to his reputation was offered solely, upon the issue of damages and for the purpose of affecting the amount of the recovery. The second case was a criminal prosecution, in which the state was permitted to sustain a witness by proof of his general reputation when the witness had not been impeached, but merely contradicted. Judge Hurt, in rendering the opinion, said: “We have held that, where it is shown that a witness has made conflicting statements about a material fact, the party introducing him can support him by proof that his general reputation for truth and veracity is good. We have also held that where there is a conflict in the testimony, and the witness is a stranger, his testimony may be supported in the same way. * * * The testimony being very equally poised, we are of opinion that it was reversible error to permit the state to support John Winkfield, as was done in this case.” If this case is to be taken as authority, evidence as to the reputation of Benjamin was admissible upon the ground that he was a stranger in that community. While the proof does not directly show that fact, it is clearly inferable from the whole record. On account of the consequences likely to follow, courts have always been more careful in safeguarding the rights of a defendant in a criminal prosecution than in a civil suit. The quantum of proof required to convict is greater than that which will support a verdict for the plaintiff in a civil action. Both of the above cases are distinguishable from the one here under consideration.

Under the facts, we do not think it probable that the admission of the evidence complained of caused the rendition of an improper judgment. It tended to prove only that the appellee was a truthful person; and, in the absence of some impeaching evidence, that, would be presumed. Hence the most that can be said of the evidence is that it was immaterial. Like all other assignments based upon the proof of immaterial facts, the question should be considered with reference to the probable effect of the evidence upon the verdict rendered. It is not contended that the finding of negligence on the part of the appellant’s employés, and that the appellee is entitled to some damages, is not supported by the evidence. The testimonial equipoise referred to in the two cases discussed, and which gave rise to the apprehension that an injury resulted from the error in admitting the evidence, does not exist in this -case. It occurs to us that if the provisions of rule .62a (149 S. W. x) mean anything, and are to have any practical application in the determination of questions on appeal, this is a case in which they may properly find a place. -An elaborate written argument has been presented in which are cited numerous decisions holding in effect that when an error has been committed in the course of the trial, either in the admission or exclusion of evidence, or in giving instructions to the jury, injury will be presumed unless the contrary clearly appears. That this has heretofore been the rule in this state is not denied.

But we take it 'that the promulgation of rule 62a is the positive announcement by our Supreme Court of a change of judicial policy in respect to such matters; that the presumption in favor of injury, if not shifted, is abolished; that hereafter no case should be reversed because of errors in such rulings unless it should be made to appear “that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.” It is insisted that, if such be the construction that should be placed upon this rule, then the Supreme Court transcended its powers in attempting to regulate appellate procedure. We know of no statutory or constitutional provision which conflicts with this rule, or denies to the Supreme Court the power to make it. But it is not necessary to hold that the authority for promulgating such a- rule is within the rule-making power conferred upon the Supreme Court, in order to justify the adoption of the judicial policy therein announced.

The power to hold an error harmless and to refuse to disturb a judgment, when in their opinion the proper one has been rendered, belongs inherently to appellate courts. What such courts may do without a rule is not put beyond their reach because it happens to be referred to an unauthorized rule. Speaking for ourselves alone, we feel it our duty to follow the established policy of our court of last resort in such matters, whether that policy is expressed in rules of procedure, or in precedents to be found in decided eases.

The last error assigned complains that the verdict is excessive. The testimony shows that the appellee was 56 years of age at the time of his injury, and that his life expectancy was IT years. It is argued that the amount allowed is double what would be necessary to compensate him for what he would have earned within IT years, had he lived so long. The jury had a right to conclude from the testimony that the appellee’s injuries were permanent; that he would never be able to perform any more labor; that he would continue to suffer from the same condition which he described as existing at the time of the trial. To this might be added the probable expense of employing physicians and nurses to treat and care for him in a helpless condition. The record before us indicates that much testimony was taken upon the trial, and - that the inquiry into his condition was thorough and searching. The jury had the opportunity to see the appellee and to observe his appearance. How much they allowed for the physical suffering he endured, or the metal anguish resulting from the wreck of his manhood, we have no means of knowing. Compensation for the loss of future earnings is far from being all that should be taken into account in passing on the question of excessive verdict. That element of damage may sometimes be a comparatively small portion of what the injured party is justly entitled to receive. We cannot say that the verdict is excessive.

The judgment is affirmed.