author: RAINEY,. C. J.

text:
    HOUSTON & T. C. RY. CO. et al. v. IVERSEN.
    (No. 7751.)
    (Court of Civil Appeals of Texas. Dallas.
    June 2, 1917.
    Rehearing Denied June 30, 1917.)
    1. Careiers <®=»140 — Oaeeier as Warehouseman.
    Where a carrier had repaired an automobile injured in shipment, and the consignee then refused to accept it, the company thereafter held it only as warehouseman.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 609, 609%, 611, 616.]
    2. Careiers &wkey;>131 — -Action for Injury to Shipment — Issues, Proof, and Variance.
    Where a carrier had sent an automobile injured in shipment away to be repaired, and on return the consignee refused to accept it, proof in the consignee’s action for damages should have been limited to value of the machine up to the time of its return after being repaired; there being no pleading or proof as to carrier’s liability as warehouseman after the return.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 569-577, 593.]
    3. Trial &wkey;>252(7) — Instructions—Applicability to Evidence.
    Where evidence showed that automobile injured in shipment was not valueless after being repaired by carrier, an instruction to find a verdict based on value “in the event of a total destruction,” held erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 602.]
    4. Carriers <&wkey;114 — Injury to Shipment — Limitation op Liability.
    Ordinarily a carrier’s liability for injury to a shipment will cease when the goods are refused by the consignee, although damaged, unless the carrier has extended its liability by an act such as retaining possession and having the goods repaired.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 608-620.]
    5. Carriers i&wkey;89 — Consignee’s Duty to Accept Damaged Goods.
    The consignee is obliged to accept goods when duly tendered by carrier, although damaged in transportation if not rendered totally valueless.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 324r-330.]
    6. Trial <&wkey;252(7) — Instructions—Applicability to Evidence.
    An instruction that consignee could recover for injuries to an automobile occurring while in carrier’s possession after its agreement to repair the machine, rendering it valueless; was erroneous in view of the evidence which did not show that the machine was then valueless, and where consignee had refused to accept it when tendered after it had been repaired.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 602.]
    Appeal from District Court, Navarro County;' I-I. B. Daviss, Judge.
    Suit by Henry Iversen, against the Houston & Texas Central Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and R. S. Neblett, of Corsicana, for appellants. Callicutt & Johnson, of Corsicana, for appellee.
   RAINEY,. C. J.

A statement of the nature of the case is taken from appellant’s brief as follows:

‘This suit was instituted by appellee, Henry Iversen, in the district court of Navarro county against the Houston & Texas Central Railroad Company, the Missouri, Kansas & Texas Railway Company, and the Chicago & Alton Railway Company. The object of the suit was to recover damages for injury done to an automobile belonging to plaintiff, shipped from Springfield, III., to Corsicana, Tex. The petition contained two counts: First. That the automobile was worth about $3,300, and when delivered to defendants for shipment in August, 1912, was worth $1,800, and that appellants failed to safely transport the automobile, and that in transit it became broken, damaged, and injured in many of its parts, and that it was so damaged and injured that it was rendered valueless as an automobile, and could not be used for any purpose whatever, and that plaintiff had been damaged to the amount of the value of the automobile, to wit, at least $1,800. Second. The second count in the petition is that if for any reason appellee should not show himself entitled to recover for the full value of the automobile, as above set forth, then he says that the defendants, and especially the Houston & Texas Central Railroad Company, undertook to place the automobile and its equipment in as good condition as it was when received, and that defendants and each of them have failed to do so; that the automobile is now in a very damaged condition, and it is impossible to use it as an automobile, and that it will cost the sum of at least $800 to put it in repair, and in the alternative plaintiff prays for judgment for such amount of damages, $800.”

Appellants denied, the contention that the automobile had become entirely valueless, and denied that it would cost $800 to repair it, and denied that the automobile could not be used for any- purpose. They tendered the automobile in question. The trial resulted in a verdict and judgment in favor of ap-pellee against the appellants in the sum of $1,400.

The first assignment of error ' complains of the third paragraph of the court’s charge, and submits the following objection, to wit:

“Defendants object and except to - the third paragraph of the charge to the jury, wherein it submits to the jury the issue as to whether or not there was a total destruction of the automobile in question at the time it reached Corsicana in shipment from Springfield, Ill., and before there was any contract between any of the defendants and the plaintiff with reference to making repairs upon the same. Because there is no evidence in the case which would warrant the submission of such issue to the jury, or which would warrant the jury in finding that there was a total destruction of the machine or automobile in question at the time stated above.”

Appellee alleged that the au-to was damaged and injured while in transit to the extent of being valueless as an automobile, and “cannot be used for any purpose whatever.” It was also alleged in the alternative that defendant undertook to place the automobile in as good condition as when received for shipment, which required $800, and prayed for this amount in the alternative.

The auto reached Corsicana about August 25, 1912. Before being delivered by the railway company it was agreed between Iversen, the owner, and the Houston & Texas Central Railway Company’s claim agent that the railway company should retain possession of it, ship it to Dallas, have it repaired, and return it to Corsicana, which was done after which appellee refused to accept it, claiming that it was not properly repaired, and the railway company retained possession thereof, until the trial of this case, which was at the January term, 1916. The testimony as to the worthlessness of the machine was confined to the time of trial, several witnesses placing the value at not less than $100, and more. Several witnesses fixed the value at $2,000 when shipped from Springfield, Ill. There was testimony, in affect, that it would take not mote than $825 to repair it when it reached Corsicana. One witness stated that to make it as good as before the damage was done it would take $736.

The case seems to have been tried by the court on the theory that appellants still had possession of said machine as common carriers. We think, however, after the return of the machine to Corsicana and the appellee refused to accept it, the railway company held it only as warehouseman from, that time. There was no pleading nor proof as to its liability as warehouseman, so the proof should have been limited to the value of the machine to the time of its return from Dallas. The testimony does not show what the car worth at that time, at least it is not sufficient to show that it was valueless at that time, and the court erred in charging the jury to find a verdict, basing it on the value in the “event of a total destruction,” etc. Ordinarily, the liability of the railway company as a common carrier would have ceased when the machine first arrived at Corsicana and the appellee refused to accept it, although damaged and had not the railway company extended its liability as such by retaining possession and having it repaired, which extension expired upon the machine being returned to Corsicana and appellee notified thereof.

The following authorities hold that when goods are shipped over a railroad the consignee must receive them, if duly tendered, though damaged in transportation, if not rendered totally valueless: Railway Co. v. Mercantile Co., 104 S. W. 1072; Railway Co. v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; Railway Co. v. Chinski, 53 Tex. Civ. App. 21, 114 S. W. 851; Railway Co. v. Bell, 168 S. W. 397; Railway Co. v. Burrus Mill Co., 168 S. W. 1028. There being no testimony that the auto was valueless, although damaged, when it arrived at Corsicana from Springfield, Ill., it was error in the court to submit in the fourth paragraph of its charge the issue of the machine being valueless.

The court also erred in its sixth paragraph of its charge as follows:

“Now, therefore, if you find and believe from a preponderance of all the testimony in this case that after the arrival of said automobile in Corsicana, Tex., from Springfield, Ill., the defendants, or any of them, and the plaintiff herein entered into a contract and agreement by the terms of which said defendants, or any of them, contracted and agreed, in settlement of such damages, to repair and replace said automobile in as good condition as when delivered to defendant at Springfield, Ill., and you further find and believe from a preponderance of all the testimony that the defendants, or such of them as were parties to and bound by the later contract if made, while in the possession of said automobile and while retaining possession under said contract, damaged and injured said automobile to such an extent as rendered it valueless or permitted it to be damaged, injured and destroyed while in their possession, then, in such event, you will find for the plaintiff damages for such sum as you believe from all facts and circumstances in this case, which would have been the market value of said automobile in its condition when delivered to defendant companies for transportation at Springfield, Ill., not to exceed, however, the sum of $1,800, the amount sued for.”

Appellant objects to said charge as follows:

“The court erred in the sixth paragraph of its charge to the jury, in that portion of the same wherein the jury' is authorized to find for plaintiff if there was a contract with plaintiff to repair the machine in question in settlement of the damages and thereafter, while in possession of defendants, before its delivery to plaintiff, it was damaged and injured to such an extent as to render it valueless and totally destroy its value, because defendants will not be liable for damages which accrued to the machine which rendered it valueless after defendants tendered the same to plaintiff and he refuse'd to accept and receive it.”

This criticism of the charge under the evidence is tenable, because the machine at that time was not shown to be valueless, and ap-pellee having refused to accept it when tendered upon its being returned from Dallas. Under the plaintiff’s pleading no recovery for injury after that time could be had. Baumbach v. Railway Co., 4 Tex. Civ. App. 650, 23 S. W. 693; Railway Co. v. Chesnutt (Ky.) 89 S. W. 298.

There are several errors presented, but for the errors here indicated, the judgment will be reversed, and we think it unnecessary to discuss the other assignments not specially mentioned herein.

The judgment is reversed, and the cause remanded.
      <grn?J?or other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FT. WORTH & R. G. RY. CO. et al. v. TUGGLE.
    (No. 8708.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 30, 1917.)
    1. Appeal and E®ror <&wkey;547(2) — Record — Failure to File Findings of Fact and Conclusions op Law — Statement of Facts.
    In the absence of a statement of facts, the failure of the trial judge to file findings of fact and conclusions of law, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1989, requires reversal of the judgment.
    2. Appeal and Error &wkey;o547(2) — Record — . Failure to File Findings of Fact and Conclusions of Law — Showing by Bill of Exceptions.
    The failure of the trial judge to file findings of fact and conclusions of law, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1989, must be shown by bill of exception to authorize consideration of it as cause for reversal, as provided in rule 55 of the Court of Civil Appeals (142 S. W. xxi).
    B. Appeal and Error &wkey;>933(l) — Presumption-Ruling on Motion for New Trial.
    In the absence of showing to the contrary,. ■,he trial court’s order overruling motion for new trial will be presumed to have been correct, and, if necessary to support the order, the presumption will be indulged that defendant’s application for the filing of findings of fact was withdrawn or waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3772.]
    4. Waters and Water Courses t&wkey; 179(1) — Obstruction of Rainfall Overflowing Lands — Pleading.
    In an action against a railroad and its receiver for damage to plaintiff’s land by the overflow of obstructed rainfall, where the petition alleged that the obstruction was due to the negligent construction of the roadbed originally, as well as to tlje negligence of the receiver in maintaining and operating it after construction, a cause of action was stated against the railway.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 244r-247, 263.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by T. H. Tuggle against the Ft. Worth & Rio Grande Railway Company and others from a judgment for plaintiff, defendants appeal.
    Affirmed.
    Kearby & Kearby, of Comanche, for appellants. Smith & Palmer, of Comanche, for ap-pellee.
   DUNKLIN, J.

This appeal is prosecuted by the Ft. Worth & Rio Grande Railway Company and G. H. Schleyer and Avery Turner, its receivers, from a joint.judgment rendered against them in favor of plaintiff, T. H. Tuggle, upon pleadings alleging, substantially, that through defective construction and maintenance of the roadbed of the defendant railway company across plaintiff’s land the natural flow of water from rainfall had been so obstructed and diverted as to cause the overflow of plaintiff’s land adjacent to the roadbed and the destruction of crops growing thereon. The trial was by the court without the aid of a jury, and by the first assignment of error it is insisted that the judgment should be reversed because of the failure of the trial judge to file flndihgs of fact and conclusions of law, as provided by article 1989, Vernon’s Sayles’ Texas Civil Statutes. The record contains-no statement of facts.

According to numerous decisions, such as Wandry v. Williams, 103 Tex. 91, 124 S. W. 85, and T. & N. O. Ry. Co. v. Highland Dairy Co., 137 S. W. 137, in the absence of a statement of facts such a failure of the trial judge requires a reversal of the judgment rendered by him. But it is also well settled that such failure must be shown by a bill of exception in order to authorize a consideration of the same as a cause for reversal, as provided in rule 55 (142 S. W. xxi). Boyette v. Glass, 140 S. W. 819, and decisions there cited. The reason for sucn a requirement is given by our Supreme Court in Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742, as follows:

“It may frequently occur that a party who has filed his application for findings of fact and law may waive or withdraw it. Without a bill of exceptions, when the findings do not appear, we cannot know that this has (not) been done.”

The record shows that appellant filed a written request to the trial Judge to file such findings, but there is no bill of exception showing that the application was ever brought to the attention of the court, and that he refused to comply with the request. We do find that the failure of the trial Judge to file such findings was urged as one of the grounds for a new trial in the motion for new trial filed by appellants. Even though it could he said that such a complaint had a proper place in the motion for new trial, which we doubt, in the absence of some showing to the contrary, the order of court overruling the motion would be presumed to be correct, and if necessary to support the order, the presumption would be indulged that the application for the filing of such findings had been withdrawn or waived.

It is further assigned as fundamental error that the allegations contained in plaintiff’s petition, even if true, did not state a cause of action against the defendant railway company, in that it was alleged, substantially, that the receivers were in possession, control, and management of the roadbed and other properties of the railway company, including its “culverts, sluiceways, and drainage along said roadbed and right of way” at the time plaintiff sustained the damages complained of. There is no merit in this assignment, since it was further alleged that the obstruction of the flow of water from rainfall was due to the negligent construction of the roadbed originally as well as to the negligence of the receivers in maintaining and operating the same after being so constructed.

All assignments of error are overruled, and the judgment of the trial court is affirmed.
      É=oí’or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    SPEER et al. v. DALRYMPLE.
    (No. 8635.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 12, 1917.
    Rehearing Denied June 30, 1917.)
    Evidence <&wkey;444(4) — Pabol Evidence — Existence or Condition.
    In action by real estate broker to foreclose a lien for his commissions reserved in a deed given in exchange of property and delivered to grantee, the grantors could not show existence of conditions upon which the instrument was delivered, in effect that the broker’s notes were not to be effective until payment of purchase price notes, which in fact were not paid, owing to a re-exchange, hut the land in question still standing charged with the broker’s lien.
    (Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1929, 1930, 1940, 1941, 2049.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Suit by J. B. Dalrymple against R. M. Speer and others. Judgment for plaintiff, and defendants R. M. Speer and T. J. Pen-iston appeal.
    Affirmed.
    S. C. Padelford, W. E. Myers, and Warren & Kugle, all of Cleburne, for appellants. Ramsey & Odell and Brown & Lockett, all of Cleburne, for appellee.
   CONNER, C. J.

Appellee, Dalrymple, instituted this suit in the district court of Johnson county on the 5th day of December, 1914, against W. R. Grice, T. J. Peniston, and R. M. Speer, wherein he sought a recovery against the defendant W. R. Grice as the maker of two promissory notes executed by said Grice on the 20th day of September, 1912, for the aggregate amount of $300, with interest at 8 per cent, from date, and 10 per cent, attorney’s fees. Both notes were payable to the defendant Peniston, or order, but were alleged to be the property of the plaintiff. The plaintiff also sought to foreclose a vendor’s lien and deed of trust lien as against all the defendants on two sections of land (1,280 acres) located in Ector county, Tex., and described in plaintiff’s petition. It was alleged that Peniston conveyed said land to Grice by deed dated the 20th day of September, 1912, in consideration, among other things, of the two notes sued upon, and that the said conveyance and notes expressly retained the vendor’s lien to secure the payment of the notes.

The defendants Speer and Peniston pleaded and offered to prove substantially, as follows: That the plaintiff at and before the execution of the notes declared upon was a real estate agent in Cleburne, Tex.; that the defendants Speer and Peniston at that time owned the 1,280 acres of land described in the plaintiff’s petition, and that the defendant Grice claimed to own an equity in about 1,300 acres of land in Panola and Shelby counties, Tex.; that the plaintiff Dalrymple as such real estate agent and representing both the defendant Grice and the defendants Peniston and Speer negotiated an exchange between the parties named of the properties referred to; that by the terms of the exchange defendants Speer and Peniston agreed to exchange their said Ector county land for Grice’s said equity and two promissory notes in the sum of $3,000 each, and that Grice agreed to so exchange his property and to give said notes; that it was agreed that the defendants Speer and Peniston should have a lien upon their said Ector county land to secure the payment of the said $6,000 of Grice’s notes, and that such lien was retained in the conveyance to Grice and recited in the notes and that to the same effect a trust deed lien was given by the said Grice. It was further alleged that the exchange was consummated, as stated, and that the plaintiff, Dalrymple, charged the defendants Speer and Peniston $150 as commissions for making the exchange for them, and charged the defendant Grice with $300 as commission for making the exchange for him; that the defendants Speer and 'Pen-iston paid the commission so charged against them, but that Grice for the commission due from him executed the two notes declared upon by Dalrymple; that the defendants Speer and Peniston finally consented and agreed that said two notes might he included as among the notes made by Grice and referred to and secured by the vendor’s lien in the conveyance from Speer and Peniston to Grice under the following circumstances, to wit: That said notes were to be made payable to the order of Peniston; that they were not to take effect or be delivered to Grice until after the payment of the said two $3,000 notes made by Grice. It was alleged that Peniston in fact had never indorsed or transferred said notes to the plaintiff, Dalrymple; that said $3,000 notes executed by Grice had never in fact been paid; that on the contrary at a later date specified in the petition it was ascertained by the defendants Speer and Peniston that Grice at the time of the original exchange had no equity as represented by him in East Texas lands, and that thereupon by negotiations through the plaintiff, Dalrymple, Grice reconveyed to the defendant Speer said Ector county land, and said Speer and Peniston recojiveyed to Grice any and all equity covered by Grice’s original deed, and surrendered to Grice his two $3,000 notes.

It is undisputed in the record that while the notes declared upon in this suit were made payable to the order of Peniston, they in fact were owned by the plaintiff, Dalrym-ple, having been executed by Grice, not as any part of the consideration for the Ector county land received by him at the time, but in payment of the commissions due from Grice to Dalrymple. It is further undisputed that in the re-exchange the lien upon the Ector county land to secure the two $3,000 notes originally executed by Grice was released, but no release of the lien to secure the notes declared upon in this suit appears in either allegation or proof offered. On the contrary, so far as appears from either allegation or proof, the defendant Speer, who at all times was the real owner, now holds the Ector county land charged with the vendor’s lien for the payment of the notes in controversy in this suit.

The court declined to admit evidence in support of the allegations above referred to, which had been specially pleaded by the defendants Speer and Peniston, and gave to the jury a peremptory instruction which was followed by a judgment in favor of the plaintiff | as against the defendant Grice for the principal, interest, and attorney’s fees due upon the notes sued upon and against all parties foreclosing the liens which the plaintiff sought to foreclose, and the defendants Speer and Peniston have appealed.

While appellants’ assignments are numerous, but a single material question is presented for our determination, and that is, Did the court rule correctly in excluding the evidence offered by appellants in support of the allegations of their special answer, as above set out? We think he did. As it seems to us the case of Holt v. Gordon, by this court reported in 176 S. W. 902, and later sustained by our Supreme Court, as will appear by a reference to 174 S. W. 1097, is conclusive in favor of the court’s action. Prom the statement made it is to be observed that there is no contention by appellants that the notes sued upon by the appellee were of no effect as against the defendant Grice. Tire sole effort on the part of appellants was to defeat the asserted lien upon the Ector county land as reserved in the original conveyance by appellants to the defendant Grice. The rule, therefore, so strongly urged in behalf of appellants that parol evidence is receivable to show that a written instrument had been executed under an agreement that it was not to become effective save upon certain conditions, has no application. Say our Supreme Court in the case cited:

“That principle has never been recognized by this court as applicable to a deed to land, or a deed of trust affecting the land, where the delivery of the instrument was made to the grantee, and not to a third person. It has, upon the contrary, been distinctly held that a deed or deed of trust cannot be an escrow where it is delivered to the grantee in the instrument.”

It must follow, we think on the authority of 1-Iolt v. Gordon, and the authorities cited by both this court and the 'Supreme Court, that appellants, in order to defeat the lien reserved in the deed to Grice, could not prove the facts offered in evidence. The deed without question was delivered to Grice with agreement on appellant’s part that thereby a lien in express terms and by legal effect had been acquired by the appellee, Dalrymple, to secure an unquestioned debt. There is no allegation nor offered proof that upon the re-exchange of properties referred to that ap-pellee, Dalrymple, consented or agreed that the lien so secured should be destroyed, and the evidence offered failed to have such effect. We therefore conclude that the court did not err in giving the peremptory instruction to the jury to find for the plaintiff, and the judgment will, accordingly, be affirmed.
      €spFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    FOWLER et al. v. STATE.
    (No. 4666.)
    (Court of Criminal Appeals of Texas.
    June 29, 1917.)
    Livery Stable and Garage Keepers <&wkey;14 — Duty to Keep Record — Statute — Construction.
    Under Acts 35th Leg. c. 159, providing that any garage which fails to keep a proper register of each and every material repair or change in or on any automobile as required in the act shall.be guilty of a misdemeanor, persons engaged in operating a repair shop and garage are not liable for failure to keep a record of repairs in view of Pen. Code 1911, arts. 9, 10, on construction of words in penal statutes; a “person” or “citizen” not being a “garage.”
    [Ed. Note. — For other cases, see Livery Stable and Garage Keepers, Cent. Dig. § 15.]
    Appeal from Travis County Court; D. J. Pickle, Judge.
    J. W. Fowler and another were convicted, and appeal.
    Reversed.
    R. B. Humphrey, of Austin, for appellants. B. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were charged with a violation of the act of the recent Legislature, found on page 368, Laws 1917, as certified by the secretary of state. It provides :

“Every repair shop of whatsoever kind, or garage, within this state, engaged in the repairing, rebuilding or repainting of automobiles of every description; or any repair shop, within the state, engaged in electrical work in connection with automobiles of every description, shall keep a well bound book in which they shall register, in an intelligent manner, each and every material repair or change in or on’ any automobile or automobiles of every description.”

The second section sets out what this register shall contain; and the fourth section provides that the failure of any garage, repair shop, or electrical shop engaged in electrical work in connection with automobiles of every description, to keep a proper and intelligent register, as required in this act, or the failure to allow an inspection of said register by any person or persons desiring to do so, shall be guilty of a misdemeanor when a complaint has been duly made before the proper officer authorized under the law to receive complaints for misdemeanors, and then prescribes the punishment.

It will be noticed that nowhere within the terms of this act is a punishment denounced against any citizen of this state. It applies only to a garage and such things as are mentioned in the quoted act. Appellants were charged with operating a repair shop and garage at a designated point in Austin for the purpose of repairing and rebuilding automobiles of every description. This is alleged to have occurred on the 20th day of June, 1917; and it is alleged they failed to keep this register. It will be noticed under no terms or phase of this act of the Legislature does it apply to persons. The whole thing has entire reference to garages, repair shops, and electrical works, etc. The punishment is not denounced against anything except those defined in the act. It is a fundamental rule, and expressly so by the act of the Legislature as found in the Penal Code, that words are to be taken in their ordinary acceptation and as commonly understood. Article 10, P. O. 1911, contains this language:

“Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.”

Article 9, P. O., reads as follows:

“This Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws1 and laws upon other subjects; and no person shall be punished for an offense which is not made penal by the plain import of the words of a law.”

Following these rules, taking the language employed and its meaning, it will be readily seen and observed that by no sort of ordinary language such as is commonly understood can a garage be a person, nor is the individual citizen of Texas to be regarded by the language of this statute as a repair shop or electrical .works. He may be the manager or owner, but he is not the shop — he is not the garage. It will be observed further the Legislature does not undertake, which perhaps they might have done had they desired, to define a garage with such meaning as would do violence to the ordinary language and understood words. It cannot he held with any degree of accuracy that the word “garage” is synonymous with “person” or a “citizen.” Sometimes where ambiguous language is used by the Legislature, looking to the whole act, it may be held that the language conveys or includes things not specifically designated, but this is a stretch of the rule or construction unless the Legislature has specially so defined it. Recognizing the fact, however, that perhaps a garage and an individual are different things, or that a repair shop is not a human being, they did not undertake to make a garage, repair shop, and electrical works synonymous with the term “citizen” or a “person.” This law would not justify, from this viewpoint, the complaint and information. We have a law also to the effect, that before a man can be punished in Texas there must be an offense defined by the Legislature, and it must affect the individual and include him within its terms. No one looking at this statute would undertake to believe that by the plain import of the language in which it is written a garage would be an individual or a citizen.

It will be noticed that in certifying the compilation of the acts of the Legislature to be' as they appear before him and of record in his office, the secretary of state, among other things, states:

“The laws printed in this volume are true copies of the enrolled bills received in the office of the secretary of state after their approval by the Governor.
“Grammatical errors, misspelled words, punctuation, duplications, etc., appearing herein, are in strict compliance with the law which requires that the printed acts of the Legislature be true copies of the enrolled bills, and are not the result of carelessness on the part of proof readers or printers.
“The public can have access at any time to the original bills filed in this office.”

This is not intended to be a criticism of the Legislature for the matters indicated in said note, but as a protection to the secretary of state and those who had charge of publishing bills passed by the Legislature. So it will be seen from the above statement that this act is precisely as the Legislature passed it with whatever grammatical errors, inaccuracies, or incongruities there may be in it. So there was no mistake in placing the act as approved by the Governor into the acts of the Legislature as reported by the secretary of state.

The judgment will be reversed, and the prosecution ordered dismissed.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


author: PRENDERGAST, J.

text:
    PEACE v. STATE.
    (No. 4559.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Criminal Law <&wkey;1090(l) — Appeal and Er-eoe — Record.
    On an appeal from a conviction for arson with lowest penalty assessed, nothing is presented for review in the absence of a statement of facts or bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2804.]
    Appeal from District- Court, Hill County; I-Iorton B. Porter, Judge.
    Bert Peace was convicted of arson, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for arson with the lowest penalty assessed, and neither a statement of facts nor bill of exceptions. In the absence of these nothing is presented for review.

The judgment is affirmed.


text:
    SMITH v. STATE.
    (No. 4561.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.)
    Criminal Law <&wkey;1094 — Appeal—Review-Absence op Bills of Exceptions.
    Where complaints of the charge and refusals of requests are not covered by bills of exceptions, 1 and, in the absence of a statement of facts, the charge seems sufficient, at least applicable to a state of facts that may have arisen under the evidence introduced, as set forth in the allegations and indictment, judgment of conviction will 'be affirmed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Clyde Smith was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for burglary. There are neither bills of exceptions nor statement of facts in this record.

There are some complaints of the charge given, and special instructions refused, and also some allegations to the effect that the court erred in reference to omission and rejection of testimony. These matters are not covered by bills of exceptions, and the charge, in the absence of a statement of facts, seems to be sufficient, at least applicable to a state of facts that may have arisen under the evidence introduced, as set forth in the allegations and indictment.

The judgment will be affirmed.
      É=>For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    CAIN v. WHARTON et al.
    (No. 230.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 19, 1917.
    Rehearing Denied June 27, 1917.)
    1. Dismissal and Nonsuit &wkey;>60(2) — Dismissal for Want of Prosecution — Discretion of Court.
    Where plaintiff, suing to set aside a judgment, took no action since early in January, 1933, to procure service by publication on nonresident defendants not served, and the case was not finally called for trial till the January term, 1916, the trial court did not abuse its discretion in dismissing the suit for want of prosecution.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 141.]
    2. Dismissal and Nonsuit <&wkey;60(3) — Lack of Prosecution — Inability to Get Service — Duty of Plaintiff.
    Where plaintiff, before his case was> finally called for trial, ascertained that he was unable to get personal service on nonresident defendants not served, it was plaintiff’s duty to' proceed within a reasonable time to procure service by publication, if sufficient to give jurisdiction in the case_, and, having failed to do so, he cannot complain that the court abused its discretion in refusing to delay the ‘ease further, that he might cite such defendants by publication or otherwise, if the court was of the justifiable opinion that there had been great lack of diligence in attempting to procure service.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 142.]
    3. Appeal and Error <&wkey;927(2) — Review — Presumption Favoring Trial Court.
    On appeal from order dismissing for lack of prosecution a suit against resident and nonresident defendants, where it does not appear that plaintiff requested to be permitted to proceed as against resident defendants who had been served, it will be presumed that he did not so request, so that the action of the court in not permitting him to proceed as against the resident defendants was not erroneous.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748.]
    4. Pleading <&wkey;245(l) — Amendment—Refusal of Permission to File.
    Where the trial court, in the exercise of its discretion, dismissed plaintiff's suit against resident and nonresident defendants for lack of-prosecution, plaintiff having been lacking in diligence to procure service of nonresident defendants for three years, it properly refused to permit plaintiff to file his first amended petition, showing grounds why he should have been permitted to cite the unserved defendants by publication, and why the case should be continued that he might do so.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 653.]
    5. Appeal and Error &wkey;>1074(3) — Harmless Error — Incorporation of Pleading in Bill of Exceptions.
    Where the trial court was warranted in dismissing plaintiff’s suit for lack of prosecution, the court’s failure to permit him to incorporate, as part of the bill of exceptions, his amended petition, showing why he should be permitted to cite unserved defendants by publication, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4252.]
    6. Appeal and Error &wkey;>934(l) — Review — Presumptions Favoring Court Below.
    Every presumption should be indulged by the Court of Civil Appeals in favor of the action and judgment of the trial court.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777, 3780-3782.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by C. Cain against C. R. Wharton and others. From an order dismissing the case for want of prosecution, plaintiff appeals.
    Affirmed.
    Baldwin & Baldwin, of Houston, for appellant. W. H. Gill and Earl Wharton, both of Houston, for appellees.
   HIGHTOWER, C. J.

This suit was filed by appellant, C. Cain, in April, 1912, in one of the district courts of Harris county, and the main purpose of the suit was to set aside a judgment in another cause, to which judgment appellant and all the appellees in this suit, with the exception of appellees C. R. Wharton and Earl Wharton, were parties. The judgment sought to be set aside by the present suit, as well as the history and facts leading up to the present litigation, will be found reported in the case of Edward H. Hopkins et al. v. C. Cain, 105 Tex. 591, 143 S. W. 1145, to which reference is here made for the sake of brevity in this opinion.

There were some 29 persons made defendants in the present suit, and service was had upon 20 of them at different dates between the filing of this suit in April, 1912, and its last call for trial in January, 1916; but there were 9 of the defendants to the suit who were never in any manner served with citation, and all of whom were nonresidents of this state. It appears from the record in this case that the appellees, or some of them, at the commencement of the January term of the trial court, procured a setting of this case for trial during that term, and the case was regularly called for trial below on January 11, 1916. Upon the call of the case for trial, the appellant, C. Cain, who was the sole plaintiff, announced “Not ready for trial,” for the reason that a number of the defendants had not been served with citation, and requested that the case be continued, in order that service might be had upon such defendants, and asked leave of the court to file his first amended petition, for the purpose of citing by publication the nonresident defendants, who had not theretofore been served. This request was resisted by appellees, and was met by their motion to dismiss the case for want of prosecution, which motion was as follows:

“To the Honorable Judge of said Court: Come now Earl Wharton, C. R. Wharton, Seymour C. Bishop, Mary Lynn Weston, John R. Weston, Frank D. Delaware, Helen E. Hendricks, Amelia L. Walker, Louis W. Bishop, Jeanette Bishop Clark, Mrs. Jas. A. Dickson, Almeda Welch, Mary Morrison, Delphine Peacock, Ada Hunter, Frank D. Hunter, Minnie Camp McLeod, Jennie Camp, Emma Morgner, C. H. Camp, and Robert H. Woody, defendants in the above-styled cause, and represent to the court that the above cause was filed on, to wit, the 2d day of April, 1912, and that thereafter, upon motion of Earl Wharton, attorney for the above-named defendants, on, to wit, the- day of -, 19 — , said cause was dismissed for want of prosecution, and that thereafter, on, to wit, September 5, 1912, a motion to reinstate said cause was filed on behalf of C. Cain, plaintiff, by his attorneys, and said cause was reinstated, and that thereafter plaintiff, C. Cain, did, on or about the 24th day of September, 1912, have issued citations for the defendants in the above cause, and that thereafter, between said date and up to as late as January, 1913, citations were issued and served upon certain defendants therein, but since that date, a duration of three years period, plaintiff, 0. Cain, has made no attempt or effort toward serving the balance of the defendants unserved in this cause, and that at this time there still remains unserved a number of defendants to the above-styled cause, and that by reason of this fact it has been necessary that said cause be continued from time to time and from term to term from the time of the filing of this suit of approximately three and one-half years, and that, so far as this defendant knows, no effort, other than the one effort above referred to, has been made to obtain service upon these defendants, or to bring said defendants into this court in order that this cause may be tried and disposed of. Wherefore the above-named defendants say that by reason of these facts, and by reason of the fact that term after term and year after year they have been hampered and harassed by this cause of action, that they are entitled to have said cause dismissed, and respectfully pray the court that said cause be dismissed for lack of, or want of, prosecution. C. R. & Earl Wharton, Attorneys for the Above-Named Defendants.”

The trial court refused to permit appellant to file his requested amended petition, for the purpose of citing those of the defendants, who had not theretofore been served, by publication, and heard the motion of appellees to dismiss the case for want of prosecution, and after hearing such motion, and on the same day, made the following order granting the same, to wit:

“January 11, 1916, this cause coming on to he heard, the plaintiff! asked leave to file an amended petition, to cite the unserved defendants by publication, which was resisted by defendants who have been cited herein, on the ground that no effort has been made (so far as the record shows) to get service on said defendants for more than three years, and defendants insist that this cause be dismissed for want of prosecution, which coming on to be heard, the court is of the opinion that plaintiff has not shown proper diligence to'get service herein, and being further of the opinion that citation by publication on some of the defendants would not be sufficient or valid service in this character of suit, the plaintiff’s leave to amend and cite by publication is thereupon overruled and defendant’s motion to dismiss for want of prosecution is sustained, to all of which the plaintiff in open court excepts and gives notice of appeal.”

Thereafter appellant filed a motion in the trial court to reinstate this cause on the docket thereof, which motion, after being considered by the court, was also overruled, to which action of the court appellant duly excepted. It appears from the record that appellant and appellees were unable to agree upon a proper bill of exceptions to the action of the trial court dismissing appellant’s suit, and the trial judge himself prepared and filed a bill of exceptions, which fully reflects his action in dismissing this suit, and his reasons therefor, the correctness or truth of which bill of exceptions we do not understand to be challenged in any way by appellant, in so far as any statement of fact therein made is concerned, and which bill is here now set out in full, as follows:

“Be it remembered that in the above numbered and entitled cause the attorneys for the plaintiff and defendants, respectively, having failed to agree on a bill of exceptions to the action of the court had in said above numbered and styled cause, dismissing same for want of prosecution, the court hereby submits the following bill relating to his action in said cause as reflecting the facts connected therewith:
“Be it remembered that in this cause the plaintiff filed his original petition in this court on the 2d day of April, 1912, the purpose of said suit being to set aside a judgment rendered in this court on the 28th day of September, 1910, which said judgment was appealed to the Court of Civil _ Appeals at San Antonio, and thereafter affirmed, but upon motion for rehearing was reversed and rendered, and upon a writ of error being granted by the Supreme Court, the judgment of said Court of Appeals at San Antonio was reversed, and the opinion of the district court in said cause was affirmed• said last-named decision having been rendered February 21, 1912. That the defendants mentioned in- said petition are as follows: C. 11. Wharton, Minnie Camp McCloud, Earl Wharton, Perry Deleware, Seymour O. Bishop, Stanley N. Bishop, Mary Lynn Weston, Jeanette Bishop Clark, John K. Weston, Mrs. James A. Dickson, Prank D. Deleware, Lorice Pierce, Helen E. Hendricks, Almeda Welsh, Amelia Walker, Mary Morrison, Webster Bishop, Delphine Peacock, Lewis W. Bishop, Ada Hunter, Prank D. Hunter, C. H. Camp, Ira P. Gibbard, Charles E. B. Hunter, Jennie Camp, Elizabeth'Johnson Hunter, Emma Morgner, Garrett W. Hunter, Almeda Johnson, Robert H. Woody — all of whom were parties to the judgment above referred to, except G. R. Wharton, Earl Wharton, and Robert H. Woody, that G. R. Wharton and Earl Wharton are alleged to reside in Harris county, and that the other defendants are alleged to reside in the state of New York. The defendants O. R. and Earl Wharton were regularly served herein and filed their answer on April 12, 1912, and afterwards on May 6, 1912, the defendant C. R. Wharton filed his separate answer. On the - day of -, 1912, the clerk, upon motion of the defendants, entered a rule for costs against the plaintiff herein, and on September 3, 1912, on motion of the clerk for security of costs, the trial court dismissed said cause for failure to comply with the rule, and thereafter, to wit, on September 5, 1912, the plaintiff filed his motion to have said cause reinstated for reasons therein set forth, and, acting upon said motion, the trial court on said date reinstated said cause.
“Thereafter, on the 24th day of September, 1912, the plaintiff caused citations to issue for all of the defendants to the state of new York, some of whom were duly and legally served with a copy of plaintiff’s petition and citation as required by law for service on nonresident defendants. Afterwards, on November 4, 1912, the plaintiff caused citations to issue for all of the defendants to the state of New York, some of whom were duly and legally served with a copy of plaintiff’s petition and citation as required by law for service on nonresident defendants. Af-terwards, on November 4, 1912, the cause was continued for service upon the other defendants. Service was had upon said defendants upon the'following dates: Helen E. Hendricks, Amelia D. Walker, and Lewis W. Bishop, on the 30th day of October, 1912; Emma Morgner, on the 16th day of October, 1912; Jeanette Bishop Clark, on the 19th day of October, 1912; Del-phine Peacock, on the 25th day of October, 1912; Minnie Camp McCloud and Jennie Camp, on the 26th day of October, 1912; Mary Weston and John R. Weston, on the 26th day of October, 1912; Frank D. Deleware, on the 28th day of October, 1912; Mrs. James Dickson, on the 7th day of November, 1912; Ada Hunter and Prank D. Hunter, on the 7th day of November, 1912" Mary Morrison, on November 19, 1912; Charles Henry Camp, on the 28th of December, 1912; Robert H. Woody, on the 13th day of January, 1913; Seymour O. Bishop, on the 16th day of January, 1913.
“That thereafter, on the 6th day of January, 1913, the plaintiff, O. Cain, took interlocutory judgment by default against the defendants Mary Morgner, Mrs. James Dickson, Minnie Camp McCloud, and Jennie Camp, as will appear by reference to said judgment. Afterwards, to wit, on the same date, the defendants Charles H. Camp, Mary Weston, John R. Weston, Ada Hunter, Prank D. Hunter, Mrs. James Dickson, Delphine Peacock, Minnie Camp McCloud, Jennie Camp, Helen E. Hendricks, Amelia L. Walker, Lewis W. Bishop, and Emma Morgner filed an answer in said cause, as will appear by reference to the answer filed therein January 6, 1913. That afterwards the defendants Emma Morgner; Mrs. James Dickson, Minnie Camp McCloud, and Jennie Camp, on the 7th day of January, 1913, filed a motion to set aside the judgment by default rendered against them, and said motion, coming on to be heard on the 15th day of February, 1913, was by the court overruled, as will appear by reference to the judgment so rendered and the order of the court overruling same. That afterwards, on January 22, 1914, said cause was continued generally, and the docket does not show any further orders made in the cause by this court from the 15th day of February, 1913, until the 22d day of January, 1914, as above mentioned. Thereafter, on May 4, 1914, said cause was again continued for service upon the defendants not served up to that time; but afterwards, on January 4, 1915, this case was again continued for service, and that afterwards, to wit, on January 3, 1916, the defendants asked leave to file their first amended original answer, and same was filed by the following defendants: Earl Wharton, Seymour C. Bishop, Mary Lynn Weston, John R. Weston, Frank D. Deleware. Helen E. Hendricks, Amelia L. Walker, Lewis W. Bishop, Jeanette Bishop Clark, Mrs. James A. Dickson, Amelia Welsh, Mary Morrison, Delphine Peacock, Ada Hunter, Jennie Camp, Emma Morgner, Frank D. Hunter, Minnie Camp McCloud, C. H. Cainp, Robert H. Woody.
“Be it further remembered that thereafter, on the 8th day of January, 1916, counsel for the defendants who had been served herein filed a motion asking that this cause, be dismissed for want of prosecution, alleging in substance that this suit was filed on the 2d day of April, 1912, and after being dismissed was reinstated on September 5, 1912; that the plaintiff’s attorneys on the 24th day of September, 1912, issued citations to the defendants in said cause, and that thereafter, between said dates and up to as late as January, 1913, citations were. issued and served upon certain defendants therein, but since said time for a period of three years the plaintiff, C. Cain, had made no attempt or effort toward getting service upon the balance of the unserved defendants; and that by reason of the allegations contained in said suit the defendants were hampered and harassed by this cause of action and were entitled to have same tried or dismissed for want of prosecution.
“That the attorney for the plaintiff requested the court to grant leave to file an amended petition for the purpose of procuring service by publication on the defendants not heretofore, served, tendering same into court, which was resisted by the defendants’ attorneys upon the ground that in a suit of this character service by publication would not be sufficient, and the effect of allowing the amended petition filed would be to continue the cause again from term to term, at least one term, and could not result in obtaining legal service; and the court, after listening to attorneys for both parties, was of the opinion that to permit the filing of said amended petition would simply mean the continuance of the cause again, as it could serve no useful purpose in the opinion of the court, as in this character of case service by publication would not be sufficient, and the court thereupon declined to permit the plaintiff to file said amended petition, or to incorporate same in his bill of exceptions tendered herein (as the court was of the opinion that it would be improper practice to do so) to which action of the court plaintiff’s attorney excepted; the court at the time entering on the docket the reasons assigned herein, to wit, that the plaintiff had not, so far as the records show, been diligent in an effort to obtain service, as more than three years bad elapsed, as shown by the records, and that service by publication as requested would not in the opinion of the court be sufficient valid service in a suit of this character, whereupon the court sustained the motion of the defendants’ counsel to dismiss this cause for want of prosecution, to all of which the plaintiff in open court excepted and gave notice of appeal.
“Be it further remembered that afterwards, on, to wit, the 13th day of January, 1916, the plaintiff filed a motion to reinstate said cause, and on the 1st of March, 1916, same coming- on to be heard, and it being made to appear to the court on. said hearing, as had been done in the motion to dismiss, that this cause was filed on the 2d day of April, 1912, and that the plaintiff’s suit is one to set aside a judgment heretofore rendered by this court, in which, among other allegations, were some amounting to serious charges and reflections against two of the defendants, O. R. Wharton and Earl Wharton, who are practicing attorneys in good standing at this bar, and the court being- of the opinion that, though the cause has been filed nearly four years, taking into consideration the nature of the suit and the allegations above referred to; that plaintiff’s counsel had not shown sufficient diligence in preparing same for trial, and for a period of more than three years, in so far as is disclosed by the record, had made no effort to produce service upon nonresident defendants now unserved herein, and that there still remains unserved a number of defendants who should be brought into court before the plaintiff could proceed with his suit to set aside said judgment, the court, in whS| it conceives to be the interest of justice, sustained the motion of the defendants to dismiss the cause for want of prosecution, all of which action was duly excepted to by the plaintiff’s attorney, and notice of appeal given to the Court of Civil Appeals for the First Supreme Judicial District at Galveston, Texas.
“As hereinbefore recited, the parties having-failed to agree on a bill of exceptions, the court here now files this as his recollection of the matters in issue, and orders same to bo filed as part of the record in this cause, this the 16th day of March, 1916. Wm. Masterson, Judge.”

Appellant’s first and second assignments of error raise practically the same question, and challenge the action of the trial court in dismissing appellant’s suit for the want of prosecution, and in that connection he argues that, those of the defendants below who were not in fact served with citation being nonresidents, the court should have continued the case, and permitted appellant to cite such defendants by publication.

It will be seen, by a reference to appellees’ motion, hereinbefore copied, that the same was based upon a lack of diligence on the part of appellant in preparing his case for trial by getting service upon the necessary defendants, etc., and also it will be seen, from the order of the court granting that motion, that the court was of opinion that the allegations in the motion to dismiss because of lack of diligence on the part of appellant, as made in the motion, were true; and if the statement of facts contained in the bill of exceptions filed by the court relating to and explaining his action in dismissing appellant’s suit be true, and there seems to be nothing in this record controverting in any manner the truth of such statements, then we are of opinion that the trial court did not err in dismissing plaintiff’s suit for the want of prosecution, or, at least, we cannot hold that the court abused his discretion in taking such action. According to the allegations contained in the motion to dismiss, and also the statements contained in the court’s bill of exceptions, there appears to have been no action taken by appellant since early in January, 1913, with a view to procuring service on any of the defendants not served, although the case was not finally called for trial until the January term, 1916, approximately three years since any effort was made by appellant to procure service on unserved defendants, and certainly, this court could not hold that the trial court abused its discretion in dismissing plaintiff’s suit, under such circumstances.

If it be true that appellant ascertained, before this case was finally called for trial, that he was unable to get personal service on those of the defendants not served, and who are alleged in his petition to be residents of the state of New York, then we think that it was appellant’s duty to proceed, within a reasonable time after such knowledge, to procure service on such defendants by publication, if such sendee would be sufficient, as he contends, to give jurisdiction over such defendants in thjs case, and, haying failed to attempt to procure such service until this case was actually called for trial in January, 1916, he cannot complain that the court abused its discretion in refusing to further delay the trial of the case, in order that appellant might cite such defendants by publication, or in any other manner, if the court was of the opinion, and such opinion was justified, that there was a great lack of diligence on the part of the appellant in attempting to procure service on such defendants. Ricker v. Shoemaker, 81 Tex. 22, 16 S. W. 645. This whole matter was one, we think, that was within the discretion of the trial judge, and unless this court can say, from the record before us, that the trial judge abused his discretion in this matter, his action must be affirmed. Hall v. City of Austin, 31 Tex. Civ. App. 626, 73 S. W. 32. Being of the opinion that the trial court was justified in his action in dismissing, for want of prosecution, appellant’s suit, his. first and second assignments of error are overruled.

Appellant’s third and fourth assignments are to the effect that the trial court erred in holding that those of the defendants who had not been served up to the time of trial could not be legally cited by publication in this suit, and that it would serve no useful purpose, therefore, to delay the trial, in order to permit appellant to procure such service. In answer to this contention of appellant, it will suffice to say that it is clear, from the motion made by appellees to dismiss this cause, and the order of the court granting the same, and the statements of the trial judge contained in the bill of exceptions explaining his action, that the real ground upon which the court dismissed this suit was that appellant was clearly lacking in diligence in the prosecution of this case, and that to longer hold it on the docket would be unjust and unfair to the appellees, and while it is true that the trial judge states in the bill of exceptions that he was of the opinion that service by publication as to the defendants then not served would not avail appellant anything, or serve any useful purpose, still it is manifest, as stated above, that the court based its action in dismissing this suit upon the ground of lack of diligence on the part of appellant in its prosecution, and therefore it is unnecessary for this court to decide whether the trial judge was mistaken in his view that service by publication on the nonresident defendants not served would not be sufficient, considering the nature and purpose of this suit. But if the correctness of the court’s action depended upon the correctness of his view on this point, we are inclined to think, without deciding, however, that we would find difficulty in being able to affirm the judgment. The third and fourth assignments of error are also overruled.

Appellant’s fifth assignment challenges the action of the court in not permitting appellant to proceed to trial as against defendants C. R. Wharton and Earl Wharton, who were duly served, and who are residents of Harris county, Tex., and against whom a personal judgment was prayed, among other things. In answer to this assignment, we have to say that it nowhere appears in the record that appellant requested the trial court to permit him to proceed with his case as against these defendants; but, on the contrary, it appears from appellant’s brief, and he expressly states, that after the court decided that service by publication on those defendants then not served could not avail, and would serve no useful purpose, that then the only thing the court could do was to dismiss appellant’s suit. It not appearing that appellant requested to be permitted to proceed with his suit as against these two defendants, it will be presumed, in the absence of such showing, that he did not so request, and therefore his fifth assignment of error is overruled.

By his sixth assignment of error appellant challenges the action of the court in not permitting him to proceed to trial as against all of the defendants who had been in fact served. With reference to this matter, we have to say, as said in answer to the fifth assignment, that there is nothing in the record showing that appellant asked to be permitted to proceed with his suit as against those of the defendants who were actually served, and in the absence of such showing we must presume that no such request was made by appellant, and the sixth assignment is therefore overruled.

The seventh assignment challenges the action of the court in refusing to permit appellant to file his first amended petition, in which, he states in his brief, he showed grounds as to why he should be permitted to cite the un-served defendants by publication, and why the case should be continued to permit him to do so. This contention is met, however, by the court’s bill of exceptions relative to this matter, from which it clearly appears, if the statements in the bill be true, and we must presume them to be true, that appellant has been clearly lacking in diligence in any effort to procure service of any of these unserved defendants by any means since early in January, 1913; for it is clearly stated in the bill that, so far as shown by the records, no effort whatever has been made by appellant since 'early in January, 1913, to procure service on these unserved defendants by any means whatsoever, and surely, if these statements in the bill had been untrue, or in any manner incorrect, appellant would have controverted, in the proper way, such statements in the bill. We do not see, in view of the facts stated in this bill, how appellant could have shown by his amended petition a reason why the court should have longer permitted him to hold this case on the docket, or how he could have been prejudiced by the refusal of the court to permit him to file this amended petition. To have given the petition any effect, the court would necessarily have been bound to again continue the case, which would have been contrary to the judgment and opinion of the court that it ought to have been dismissed for the want of prosecution. We are not able to say that the court committed any error in this matter prejudicial to appellant, and the assignment is overruled.

The eighth assignment challenges the action of the court in refusing to permit appellant to incorporate in and make a part of the bill of exceptions the amended petition, which he presented to the court and asked permission to file. Appellant’s main contention in this connection is that, without such petition being made a part of the bill of exceptions, he is unable to show this court his reasons for not serving the other defendants found to be unserved at the time of trial, and his reasons why the case should have been continued to procure service on them by publication. Again we answer that the facts stated in the court’s bill of exceptions are abundantly sufficient to warrant the action of the court in dismissing appellant’s suit, and in the absence of any contradiction of that bill by appellant we cannot see how he was prejudiced on account of failure of the court to permit him to incorporate, as a part of the bill, the amended petition, which he tendered to the court and sought to file. There was no formal application for continuance of the case, duly verified, etc., which might have been done, and a proper showing made, if any reason existed for a continuance; but, as best we can gather from the r;ecord, appellant merely stated or suggested to the court that he could not go to trial, because there were unserved defendants, whom he desired to cite by publication. Every presumption should be indulged by this court in favor of the action and judgment of the trial court, and unless it be made to appear to this court, by some means in the record, that appellant has been prejudiced by the action of the court in refusing to attach this tendered petition as a part of the bill of exceptions, this court will not reverse the action of the trial court, and this assignment is overruled.

Taking this record as a whole, we have been unable to find anything upon which this court would feel justified in reversing the action of the trial court in dismissing this suit, and all assignments of error are therefore overruled, and the judgment of the trial court is in all things affirmed.
      «©owFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, O. J.

text:
    INTERNATIONAL TRAVELERS’ ASS’N v. POWELL et al.
    (No. 720.)
    (Court of Civil Appeals of Texas. El Paso.
    June 14, 1917.
    Rehearing Denied June 28, 1917.)
    1. Insurance (&wkey;G18 — Mutual Benefit Insurance — Place of Suit — Stipulations op Certificate.
    In view of Rev. St. art. 4744, providing that suit on policies may be brought against any accident insurance company in the county where the home office is located or where the loss occurred or the policy holder resides, action was properly brought in the county of the policy holder’s residence, notwithstanding a provision of the certificate that suit should be brought in the county of the home office.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1536-1539.]
    2. Insurance &wkey;>550 — Mutual Benefit — Accident Insurance — Liability.
    In view of Rev. St. art. 4807, providing that on receipt of satisfactory proof of accident and loss the company is liable for the payment of the sum promised by the policy, a by-law providing that any member who shall file a claim with said officers before his total or partial disability ceases, by so filing his claims, waives all rights to additional benefits, does not prevent recovery of the full amount promised in the policy.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1337, 1359-1361.]
    3. Insurance <&wkey;152(l) — Mutual Benefit— Accident Insurance — Liability.
    Where an accident company agreed to furnish a copy of its by-laws to the insured, but failed to do so, and the insured had no knowledge of a condition in the by-laws making a claim for partial disability final and precluding recovery of a greater amount, he was not bound thereby.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 312.]
    4. Insurance <&wkey;550 — Accident Insurance— Mutual Benefit — Liability.
    The insured under an accident policy does not forfeit his right to additional insurance by filing claim for partial disability when the claim was prematurely filed, and the insurer was not lawfully bound to. pay it until the full amount suffered had accrued and proof had been made.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1337, 1359-1361.]
    5. Insurance <&wkey;550 — Mutual Benefit — Accident Insurance — Liability.
    Where by-laws provided that in making proof of partial loss the insured waived further claim, the insurer could not defeat an action for additional sums unless it had paid the initial claim and insured had waived the benefits.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1337, 1359-1361.]
    6. Insurance &wkey;s558(4) — Mutual Benefit-Accident Insurance — Liability.
    An accident insurer cannot defeat a claim for insurance on the ground that there was no proof of loss where the assignee of insured made application for blanks upon which to make the proper claim and was refused.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1387.]

      7. INSURANCE <&wkey;602 — Accident—Penalties.
    Before the penalty provided for by Rev. St. 1895, art. 8071, of 12 per cent, damages for failure to pay a claim can be imposed, a demand for payment must be made, and evidence of the furnishing of proofs of loss and a statement that the company refused to pay is not sufficient.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig'. § 1498.]
    Apjjeal from District Court, Erath County ; ,T. B. Keith, Judge.
    Action by E. A. Powell and another against the International 'Travelers’ Association. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Seay & Seay, of Dallas, and W. W. Moores, of Stephenville, for appellant. E. E. Solomon and R. L. Thompson, both of Stephenville, for appellees.
   HARPER, O. J.

There is no statement of facts in the record. The trial court made the following findings of fact as applicable t» the points raised by the assignments of error. We copy therefrom and malte same our findings of facts:

November 29, 1913, M. C. Senter became a member of the International Travelers’ Association. The application for membership contained the following- stipulation:
“I agree, if accepted as a member, * * * that the manner and amount of the benefits to be paid shall be those only which may be provided for in the by-laws in force and effect at the time the accident occurred, which, with the certificate of membership and this declaration, shall constitute the contract between myself and the association. I further agree that all suits against said association growing out of the certificate of insurance issued on this shall be filed in the city and county of Dallas, Texas, and I hereby expressly waive my right to file said suit at any other place, etc. I agree to comply with all the requirements of the by-laws, of said association as they now exist or may hereafter be amended.”
It was further found that at the time of the application and issuance of certificate and at the time of the injury and trial there was a duly enacted and existing by-law in substance as shown below.
“I find that on or about December 2, 1913, upon said application for membership, the International Travelers’ Association issued to said M. C. Senter a certificate of membership, or policy of insurance, which, among other things, provided: ‘M. O. Senter does hereby and by the acceptance of this certificate agree that all.suits that may be filed on this certificate, or that may grow out of.this contract shall be filed in the city and county of Dallas, state of Texas, and this shall bind his beneficiary and legal representatives as well as himself.’
“I find that the defendant, the International Travelers’ Association, is the character of corporation as pleaded, to wit, a corporation having no capital stock, and that the purpose for which it is incorporated is to engage in the business of mutual assessment accident insurance, and its business is conducted on the assessment plan without lodges ; that its principal office and place of business is now in Dallas, Dallas county, Tex., and has continuously been so since its incorporation in the year 1903; that before the filing of these suits or the issuance of citation, nor at the time of filing of said suits, nor at the Issuance of the process therein, nor at this time, it has not had a local agent in Erath county, Tex., nor did it have a local agent at any of the times mentioned herein.
“I find that in the certificate issued to said Senter, among other things, is provided: ‘There shall be payable to said member in case of bodily injuries which are caused solely and exclusively by external, violent, and accidental means, not resulting_ in death, and within ninety days after the receipt by said association of satisfactory proofs of the happening of such injury, the sum of $25.00 per week for total disability for not to exceed 104 consecutive weeks.’
“I further find that after designating the various benefits under the policy, including the one above mentioned, that said certificate further provides: ‘And the same is payable within ninety days after receipt by said association of satisfactory proofs of the happening of any such injury, and any and all such payments, or liability to pay, shall be and is in accordance with and subject to each and all of the provisions of the by-laws of said association and of the provisions, and any and all amendments, alterations, and new issues of such by-laws, which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed, and which said amendments, • alterations and new issues of said by-laws shall become a part hereof as fully as if they were recited at length over the signatures hereto affixed, as soon as such amendments, alterations or new' issues of such by-laws respectively are or may be adopted, and the said M. O. Senter hereby, and by the acceptance hereof, agrees to abide, and be bound, by said by:laws, and each of them, and all lawful amendments, alterations or new issues thereof, or any of them. * * * ’
“I further find that all dues and assessments under said policy have been paid, and that said policy and certificate were in force and effect on the 30th day of December, A. D. 1914.
“And I further find that on the 30th day of December, A. D. 1914, that the said M. O. Sen-ter received bodily injuries which were caused solely and exclusively by external, violent, and accidental means, to wit, by the accidental discharge of a shotgun, and that he was totally disabled as a result of said injuries for a period of 61 weeks.
“I further find that on the 27th day of September, A. D. 1915, that M. O. Senter made affidavit of claim and proofs of claim for indemnity, which -was duly executed by the said M. C: Senter and sworn to before a notary public of Erath county, Tex., and that the same was on that date mailed to the International Travelers’ Association at Dallas, and ivas received by the said International Travelers’ Association on the 28th day of September, A. D. 1915. I further find that said proofs of claim among other things contained the following questions and ansvrers and provisions:
“ ‘Q. 29. How long; w»ere you wholly disabled in consequence of said injury from attending to each and every one of your business duties? (Give the length of time and between what dates.) A. December 30, 1914, to September 28, 1915.
“ ‘Q. 30. How long were you partially disabled from attending to your business? A. September 28th to October 28th, one month estimated.
“ ‘Q. 31. When did you first begin after your injury to attend to some part of your business or occupation? A. Have not begun to attend to any duties as yet.
“ ‘Q. For what length of time do you claim indemnity? A. I claim December 30, 1914, to October 28, 1915, indemnity, which when paid shall be in full satisfaction and final settlement of all claims I have, or may have, against the association for loss of time resulting from, the above-named injuries.’
“I further find that on the 2.7th day of September, 1915, when M. O. Senter filed his affidavit and claim for loss and indemnity, he was at that time totally disabled from said injury, and that his total disability continued for a period of 20 weeks thereafter, and that said affidavit was filed with knowledge that his total disability continued to exist, and for the purpose of securing an advancement from the company to that date, but not as a release of future indemnity for continued disability.
“I further find that at the time of all the transactions involved in this litigation that there was a duly existing by-law of the International Travelers’ Association, being part of article 7, which reads as follows: ‘Any member who shall file a claim with said officers before his total or partial disability ceases by so filing his claim waives all rights to additional benefits, and shall not be entitled to receive benefits on account of any additional total or partial loss of time than that stated in his said proofs of disability so filed before his total or partial disability. or both total and partial disability ceases.’
“I further find that the above proofs of claim were the only proofs of claim ever presented or offered by M. C. Senter, and that International Travelers’ Association did not accept, act upon, or offer to pay said claim upon the proof presented.
“I further find that prior to September 27. A. D. 1915, and ever since said time, a part and portion of said funds due the said Senter under said certificate were being claimed by A. L. Self, his estate and his executor, and that since March 2, A. D. 1916, that O. G. Foust, as as-signee of said M. O. Senter, has claimed said funds.
“I further find that prior to September 27, A. D. 1915, that the International Travelers’ Association received from said Self, his estate or his administrator, notice of the fact that they claimed said funds, but there is no evidence •that the association ever knew the amount of such funds claimed by said Self, his estate or legal representatives.
“I further find that prior to March 2, 1916, M. C. Senter made an equitable assignment to Self, or his legal representatives, of said fund to the extent of the principal of a note for $143.-90 and interest thereon, with attorney’s fees, making a total to this time of $178.70.
“I further find that said M. C. Senter was indebted to Self, his estate or legal representatives, in the total sum of $660.52, including the $178-70, for which last sum only said Senter gave an equitable assignment of the funds due from this certificate.
“I further find that on March 2, A. D. 1916, that the said M. G. Senter by a general deed of assignment, as provided for in the statutes of Texas for the benefit of creditors, made a deed of assignment to C. G. Foust for the benefit of creditors of the said Senter assigning all of his property, including whatever sums might be due upon said certificate as a result of this accident, to his said assignee, C. G. Foust.
“I find that since the 2d day of March, 1916, said O. G. Foust, as assignee, has claimed and continues to claim said funds, and that on or about April 9, A. D. 1916, that he went to the office of the International Travelers’ Association in the city of Dallas and requested blanks for the purpose of filing additional proofs of loss, and was advised by the representatives of said association that they would not furnish him the blanks, nor did they intend to pay any greater sum than was specified in the proofs of loss made by Senter on September 27, 1915, as they construed this to be the extent of their liability under the circumstances.
“I find that $150 would be a reasonable attorney’s fee in this case should an attorney’s fee be allowed.
“I further find that at the time the said Senter made the application for insurance in question he was not furnished with copy of by-laws, and did not know what the by-laws contained and the party taking his application agreed to furnish him with a copy of by-laws, but failed to do so.”

Powell, as administrator, brought suit against the International Travelers’ Association and Senter to establish his claim against Senter and to impound the funds, if any, due from the International Travelers’ Association. O. G. Foust, as assignee of said M. 0. Sen-ter, intervened, and asked that the funds due the said Senter be turned over to him. The International Travelers’ Association answered, setting up its plea of privilege to be sued in Dallas county, Tex., and, subject to such plea, pleaded that on or about the 20th day of September, A. D. 1915, M. O. Senter filed with it proof of claim for indemnity for said accident, and fixed his total disability from December 30, A. D. 1914, to September 28, A. D. 1915, and thus claimed the sum of $1,-025, being 39 .weeks’ total disability and 4 weeks’ partial disability, and by virtue of the by-laws of the International Travelers’ Association waived any claim for any further or additional amount. It further asked that said M. C. Senter be made a party to the suit, and that all claimants of the fund be made parties so that its rights might be protected in the payment of the funds due by it, it having prior notice of various claims upon the fund.

The case was tried before the court without a jury. The plea of privilege was overruled, and judgment rendered in favor of Foust, as assignee, against tne International Travelers’ Association for $1,525 on the 24th day of July, A. D. 1916. Judgment was rendered in favor of Powell, as administrator, against Senter for $660.52. It was further ordered that $143.80 of this amount be paid out of the funds due from the International Travelers’ Association.

All parties excepted and gave notice of appeal, but the International Travelers’ Association alone perfected the same.

The first assignment is that the court erred in overruling plea of privilege to be sued in Dallas county, because in the certificate of membership or policy of insurance it was stipulated and agreed that all suits should so be filed.

Article 4744, R. S. Tex. 1911, reads as follows:

“Suits on policies may be instituted and prosecuted against any * * * accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policy holder * * * instituting such suit resides.”

And it is held in International Travelers’ Association v. Branum, 169 S. W. 389, that this statute applies to this class of cases. See, also, Eaton v. Ass’n, 136 S. W. 817, for full discussion of the principles upon which the holding is based.

By its second and only other assignment appellants urge that by the trial court’s conclusions of fact it conclusively appears that appellees are only entitled to recover for the time covered by his proof of loss from December 30th, to September 28th, or $1,025.

The first proposition is that the following by-law limits them to the amount specified in the proof of claim as filed:

“Any member who shall file a claim with said officers before his total or partial disability ceases, by so filing his claims, waives all rights to additional benefits, and shall not be entitled to recover benefits on account of any additional total or partial loss of time than that stated in his said proofs of disability so filed, before his total or partial disability or both total and partial disability ceases.”

The second proposition is:

“Where proofs of loss provided, ‘I claim December 30, 1914, to October 28th, 1915, indemnity, which, when paid, shall be in full satisfaction and final settlement of all claim I have, or may have, against the association for loss of time resulting from the above-named injuries,’ and were duly signed and presented to the association, such proofs of loss were a full and complete release for any indemnity other than that specified, and was binding upon the member.”

The third proposition is:

“Where there were several claimants to the funds, and where there was some controversy as to the extent and duration of the injuries, under such circumstances, because the same was not paid, did not invalidate the association’s right to accept the -proposition of the time as stipulated in the proofs of indemnity.”

The answer to the first proposition is that article 4807, Revised Civil Statutes, provides that upon receipt of satisfactory proof of accident and loss of time the company is liable for the payment of the sum of money promised by the certificate or policy. International Travelers’ Association v. Branum, 169 S. W. 389; Courtney v. Mutual Aid Ass’n, 120 Mo. App. 110, 94 S. W. 768, 101 S. W. 1098.

Besides, it will be noted that the court found the fact to be that the insured had no knowledge of the by-law of the company relied upon; that the company agreed to furnish copy of by-laws and failed to do so. There is another reason why the assured did not forfeit his right to additional insurance. His claim was prematurely filed. At least the defendant was not lawfully hound to pay the claim until the final and full amount suffered had accrued and after proof of claim. Commonwealth Bonding & Casualty Co. v. Knight, 185 S. W. 1037.

If the company had paid the claim covered by first proofs, and assured had waived additional benefits, it might have been released under proper conditions, but this it failed to do. Clanton v. Travelers’ Protective Ass’n, 101 Mo. App. 312, 74 S. W. 510.

The second and third propositions are answered by the observation next above.

Under these propositions it is urged that the insured is not entitled to recover the amount claimed after the final date fixed by the proofs filed, because there is no proof of such additional loss. The assignee of the claim made application to the defendant for blanks upon which to make the proper claim and ,was refused; for this reason it cannot defend upon that ground. American Nat. Ins. Co. v. Bird, 174 S. W. 939.

The assignments are therefore overruled.

The appellee filed cross-action for attorney’s fee and for 12 per cent, damages provided by statute.

Before this penalty (provided for by article 3071, Rev. Stat. 1895) can be imposed by the court, a demand for payment must be made. This the plaintiff failed to do. Mutual Life Ins. Co. v. Ford, 61 Tex. Civ. App. 412, 130 S. W. 709. And evidence of the furnishing of proofs of loss and of a statement that the company refused to pay is not sufficient. Insurance Co. v. Ford, supra.

Finding no error in the record, the case is affirmed.
      &wkey;jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      i&wkey;>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HART.
    (No. 1792.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 24, 1917.
    Rehearing Denied July 28, 1917.)
    1. Trial &wkey;>260(8) — Instructions — Requests—Instructions Already Given.
    Refusing a requested instruction to find for defendant railroad if plaintiff was negligent in not stopping his team at a safe distance trom the tracks is not erroneous, where the jury were told to find for defendant if the plaintiff negligently stopped his team within a few feet of the track.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. § 657.]
    2. Evidence &wkey;r558(7)—Opinion Evidence-Cross-examination oe Expert—Interest.
    While defendant railroad might show plaintiff’s expert medical witness was to receive more than the statutory fee if a judgment was recovered in the pending action, it cannot cross-examine the witness regarding contingent fees received by him for testifying in other damage suits.
    [Ed. Note.—Eor other cases, see Evidence, Cent. Dig. § 2379.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by K. C. Hart against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bois d-’Arc street in Greenville runs north and south. Appellant’s main line track and one of its side tracks run east and west across Bois d’Arc street. The side track was a short distance south of the main line track, and was connected with it by a switch about 100 feet west of said street. April 26, 1913, appellee, traveling in a wagon loaded with stove wood and drawn by a team of gentle mules, approached B’ois d’Arc street from the south. When he reached a point about 30 feet from said main line track he saw a locomotive at a point 100 yards or more west of the street, rapidly pushing a tank car east on the main line track. He at once stopped his team, and his mules stood with their fore feet over the south rail of the side track. When the tank car reached the switch it was “kicked” by the' engine from the main line to the side track, along which it continued east at a rapid rate of speed. When appellee saw the car take the side track he at once began jerking his mules off of and from that track, on which they were standing as stated. As the mules were backing away from the track the car passed rapidly' along it, about two feet from their heads, so frightening them that appellee lost control of them and they backed the wagon south of Bois d’Arc street about 30 feet, and then into ,a ditch on the side of the street. As a result of the wagon going into the ditch appellee was thrown violently from the seat thereof on which ho was sitting onto the wood therein, whereby he suffered, he alleged, serious and permanent injury to his person. In his petition appellee alleged, as negligence on the part of appellant’s employés in charge of the locomotive and tank car which rendered it liable to him for the damages he suffered, that said employés caused the locomotive to “kick” the car from the main line) track onto the side track as they did in violation of a duty they owed him not to do so under the circumstances, and caused said car to move east on said track and pass in front of and in close proximity to appel-lee’s mules at the rate, of 20 or 25 miles an hour, in violation of the provisions of an ordinance of said city of Greenville making it unlawful to cause such a car to be run within its limits at a greater rate of speed than 6 miles per hour. The answer of appellant to appellee’s petition consisted of a general denial and pleas of contributory negligence on his part. The appeal is from a judgment in appellee’s favor for $6,000.
    Ghas. 0: Huff, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. Evans & Shields, of Greenville, for appellee.
   WILLSON, O. J.

(after stating the facts as above). In its assignments appellant complains of the action of the trial court: (1) In refusing a special charge requested by it; (2) in admitting as evidence certain tes-, timony offered by appellee; and (3) in excluding as evidence certain testimony offered by it — and also complains of the verdict on the ground that it was excessive.

Appellant presented to the court, with a request that he give same to the jury, two special charges on the issue as to contributory negligence on the part of appellee which it thought was made by the testimony. Both of the charges were predicated on knowledge by appellee, as he approached the crossing, of the fact that cars were then being -switched toward the street on appellant’s main line track. In the one numbered 3, which the court gave, the jury were told, in effect, to find for appellant if they believed it was negligence on the part of appellee to stop his team “within a few feet” of the side track. The charge refused, No. 6, had it been, given, would have told the jury, in effect, to find for appellant if they believed it was negligence on the part of appellee not to stop his team “while he was at a safe distance” from appellant’s tracks. It is plain, we think, that each of the charges, had both been given, would have submitted onp and the same question to the jury for determination, to wit: Was appellee guilty of negligence in stopping- his team as close as he did to the side track? Having submitted the question to the jury when he gave the special charge numbered 3, of course the trial court did not err when he refused to repeat it by giving the special charge numbered 6.

The testimony appellant objected to, and which the court nevertheless admitted, was that of appellee and his witness Dr. Hart, in regard to transactions between appellee and one Nellie Howard, and to conversations he had with her and others about those transactions. No useful purpose would be served by detailing the testimony here. We have considered it in connection with other testimony in the record, and have reached the conclusion that the court did not err when he overruled appellant’s, objections and admitted it.

The testimony excluded, and which appellant thought ought to have been admitted, was that of Dr. J. A. Smith, a witness for appellee, and one of the physicians who treated appellee for the injury he claimed he had suffered. On its cross-examination of Dr. Smith appellant proved by him that in the nine years preceding the trial he had been' a witness for plaintiffs, represented by appellee’s attorney B. Q. Evans in about 110 damage suits against railway companies, and" had never been a witness for a defendant in such a suit. Appellant complains that the court refused to permit it to further prove by the witness that he had been paid contingent fees for testifying in a number of the suits, and then- had a suit pending in the district court of Hunt county to recover $700 for testifying in one of them, in which he alleged in his petition that it was on his testimony that the plaintiff in that suit had recovered a large judgment against the defendant. It would have been permissible for appellant to show, if it could, that a fee other than the statutory one was to be paid the witness if appellee recovered a judgment against it, and doubtless it would have been permitted to make such proof had it offered to do so. But proof that the witness had received, or claimed a right to receive, contingent fees for testifying as a witness in other eases would not of itself tend to show interest on his part in the result of this suit, nor bias against appellant.

The verdict was not excessive if the consequences to appellee of the injury he suffered was as serious as testimony offered by Mm indicated they were. The jury had a right to believe that testimony in determining the amount they should award to appel-lee.

The judgment is affirmed.
      @=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes