text:
    WATERMAN LUMBER & SUPPLY CO. v. PHELPS.
    (No. 6763.)
    (Court of Civil Appeals of Texas. Galveston.
    March 25, 1915.)
    1. Railroads <@=297 — Licensees—Collision.
    In an action against a lumber company operating a logging railroad for injuries sustained by the wife of an employé in a collision between the motor car on which she was riding and a hog on the track, evidence held to sustain special findings that defendant’s servants were negligent as to the speed at which the car was operated and in failing to see the hog in time to avoid the collision.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 944-953; Dec. Dig. <@=297.] -
    2. Railroads <@=292 — Licensees — Assumption of Risk — Collision.
    A licensee injured while riding on a motor car, operated on defendant’s railroad, in a collision with a hog on the track, did not assume the risk of injury from the negligence of the operator of the car; it being his duty to exercise ordinary care.
    [Ed. Note. — For other cases, see Railroads,Cent. Dig. § 938; Dee. Dig. <@=292.]
    3. Appeal and Error <@=263 — Reservation op Exceptions — Instructions.
    Assignments of error, as to refusal to give special instructions, will not be sustained where no bill of exceptions was taken to the action of the court below in refusing such instructions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <S»263.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Action by J. A. Phelps against the Waterman Lumber & Supply Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Davis & Davis, of Center, for appellant. Blount & Strong, of Nacogdoches, for ap-pellee.
   PLEASANTS, C. J.

This suit was originally brought by appellee against the appellant and Dock Iverson to recover damages for personal injuries to appellee’s wife, alleged to have been caused by the negligence of the defendants. In his second amended petition, upon which the case was tried, plaintiff dismissed as to Iverson and only asked recovery against the appellant. This petition alleges, in substance: That defendant corporation is engaged in the manufacture of lumber, and in connection with the said manufacturing business owns and operates a railroad extending from the town of Grigsby, in Shelby county, into San Augustine county, and owned and operated on said railroad a “motor car” for the purpose of transporting its employes and other persons whom it might wish to transfer back and forth over said lines. That on or about said 16th day of November, 1912, the plaintiff wished to go from the point in San Augustine county where he was then working, to a point in Shelby county, and wished his wife, Nora Phelps, to accompany him. That defendant’s motor car was on the track near where plaintiff was, and was in the charge of the defendant’s general manager and its roadmaster. That, learning of the desire of plaintiff’s wife to go to Waterman, the said officials invited ner to accompany them to Waterman and to ride on said motor car. That, knowing that the defendant habitually prior to that time had transported persons over said lines, and that the general manager and roadmaster in charge thereof had authority to carry persons over said lines on said car, plaintiff’s wife accepted said invitation and boarded the ear, and that defendant’s agents and employes permitted plaintiff’s wife to become a passenger on said car, and the defendant thereby became bound to use ordinary care to transport her with safety and without injury. That plaintiff’s wife was wholly unacquainted with the operation of said car, and unaware of any danger incident to riding thereon, and that she relied on defendant’s servants and employes to operate said car with safety and without injury to her. That said car started just after dark, and notwithstanding same was only lighted with an ordinary lantern, and the defendant knew that hogs and other animals did frequently go upon and across said track, which was not fenced, that the employes of defendant caused said car to run at a high rate of speed, knowing that with the inadequate light a hog or other animal could not be discovered, if on the track, in time to prevent a wreck; and that the car did strike a hog, did wreck, and threw plaintiff’s wife therefrom a distance of some 20 or 30 feet against the ground or railroad track, and severely injured her. That the defendant was negligent in not keeping a proper lookout, and in not discovering the hog before the contact of the car therewith, and in not stopping the car in time to prevent the collision; and that the negligence of the defendant in failing to stop the car after the hog was discovered on tihe track was negligence, and was the direct and prox1-imate cause of the injury to plaintiff’s wife. That plaintiff’s wife, as the result of' such negligence, and as the result of the wrecking of said car, sustained the following injuries: That her breast bone was broken, and she was injured internally in and about her chest; that her hip, near the joint, was broken, causing her to be a cripple for life; that her back was wrenched and injured permanently; that her womb was flexed, from which she will continue to suffer through life; that she suffered great physical suffering and mental anguish; that she was confined to her bed for eight weeks, and will continue to suffer throughout life. That plaintiff’s wife, prior to said injury, was a woman about 40 years of age, in perfect health, and by reason of the injuries aforesaid she should recover of the defendant the sum of $2,975.

The defendant answered by general demurrer, and further answered that it did own and operate a motor car as described in plaintiff’s petition, as a part of its equipment for the purpose of building and repairing its road, and carrying its tools and other things necessary in said work of repairing its tram-roads, and to carry its employes engaged in said work to their work during the day and back to Waterman, the mill site, at night. That said car was not made for the transportation of passengers, but that it was dangerous to ride on same, a condition that was visible to all persons who saw or rode on said car; that the plaintiff, Phelps, was one of the emploj^és of the road, who habitually rode on said car, and knew the condition of said car, the right of way, etc., and knew every danger incident to riding on said car; that said car was run by means of a gasoline motor, and was a work car, having a single seat, a plank running from the front end of the car to the back, on which persons riding would sit, their feet extending to the sides of the car, and there being room for some 10 or 12 persons to sit on said car; that on the evening in question, when the car was at a point near the boarding car and was about ready to begin its trip to Waterman, the plaintiff and his wife, Mrs. Nora Phelps, requested permission to ride on the motor car up the line in the direction of Waterman to a point where they wislied to alight, and that such permission was at first refused, hut they were finally told tnat if they rode on the car they would take the chances of being hurt; and that the husband of the said Mrs. Phelps was present, knew the condition of the road and the car, and the danger incident to the operation of the car, and insisted that she be given permission to ride on said car, and, under these circumstances, she, with the plaintiff, boarded the car. Defendant denied running the car at a reckless rate of speed, but says that, as the car was proceeding northward at a moderate rate of speed, a hog was seen to cross the road at a short distance in front of the car, and that the car was slowed down to enable the hog to pass, which it did, and everything seemed clear, but that just as the car got to the point where the hog had been seen to cross the track, another hog, which had been concealed in a hole in the ground so that it could not be seen from the car, came from the hole and ran rapidly across the track, and while crossing the track was struck by the car and killed, and the car was wrecked; that it was impossible, on account of the place the hog was in, to see it before it was seen, and when it was discovered it was impossible to stop the car before contact with the hog; that at the time of the wreck the defendant was using all due care and caution in the operation of the car; and that running over the hog was an unavoidable accident. For further answer, the defendant pleaded that her husband knew the danger incident to riding on such car, and the said Mrs. Nora Phelps knew same, and that they were mere licensees, and assumed all risks incident to riding on same. And for further answer the defendant denied that the ihjuL ries of plaintiff’s wife, her broken ribs, and the other injuries complained of, were due to the wreck aforesaid, but says that same, if any she has suffered, were the result of a fall from a horse, sustained by the said plaintiff’s wife some years prior to .the wreck.

The cause was submitted to a jury upon special issues. The issues submitted to the jury were as follows:

“(1) Was the defendant company, through its agents operating said motor car at the time of the accident, guilty of negligence in operating said car, under the circumstances, at the rate of speed at which you find the same to have been operated? Answer this ‘yes’ or ‘no.’
“(2) Was the defendant company, through its agents operating said car, guilty of negligence in failing to discover the hog, and the danger of the car coming in contact with same, in time to have been avoided, by the use of ordinary care, the accident and injury to plaintiff’s wife, if she was injured? Answer this ‘yes’ or ‘no.*
“(3) Did the agent of the defendant company operating said motor car discover said hog at or near its railroad track in time to have avoided, by the use of ordinary care, the contact with same? Answer this ‘yes’ or ‘no.’
“(4) If you answer either of the above three questions ‘yes,’ then you will answer the following question: What sum of.money, if any, is the plaintiff entitled to as compensation for such injury, if any, as you find plaintiff’s wife has received?
“(5) You will state by your verdict whether or not the failure to discover the hog' that caused the wreck before it was discovered was due to the negligence of the parties operating the car.”

To the first, second, and fifth questions the jury answered “Yes,” and to the third question they answered “No.” In response to the fourth question, they found that plaintiff was entitled to recover $1,000. Upon the return of this verdict judgment was rendered in accordance therewith in favor of appellee against appellant for the sum of $1,000.

The evidence shows that appellee was an employs of appellant, and that his wife kept a boarding car on the line of appellant’s tramroad, in which meals were served to employés of appellant engaged in the work of cutting and loading logs for transportation to appellant’s lumber mill. On the day of the accident in which appellee’s wife was injured, Mr. Pargeter, the general manager of appellant corporation, and Mr. Iverson, its trainmaster, came by the place at which appellee’s wife was keeping her boarding ear in a motor car owned by appellant. This car was one of two motor cars owned and operated by appellant. It was not the car generally used by appellant for carrying its employés to and from their places of work, but was principally used for carrying tools and supplies. However, there was a seat for passengers extending lengthwise through the center of the car for the accommodation of passengers, and employés of appellant and others, by permission, rod© on this car. On the occasion in question appellee requested the general manager of the company to allow him and his wife to ride on said car to the town or station of Waterman on appellant’s tramroad some 8 or 10 miles distant from the boarding car kept by appellee’s wife. This request was granted, and appellee and his wife, with five or six others who were employés of appellant, boarded the car which left on its way to Waterman about 7 o’clock in the evening. This was about dark. The only light on the ear was an ordinary lantern with a reflector which only lighted the track for 40' or 50 feet in front of the car. The night was cloudy. After the car had proceeded some distance on its way to Waterman, it ran over a hog, which ran across the track in front of thé car, and was thrown off the rails and across the track, and most of the passengers, among them plaintiff’s wife, were thrown violently on the ground. Mrs. Phelps, as a result of this accident, sustained injuries to her person which caused her much pain and suffering and from the result of which she had not fully recovered at the time of the trial. At the time the car ran over the hog, it was running at thex rate of 15 miles an hour. At the place at which the accident occurred there were trails crossing the track made by hogs and cattle going into and returning from a bottom near by. The ear was operated by Iverson, appellant’s train-master. He was familiar with the road and the conditions surrounding the place of the accident.. He testified as follows:

“It was dangerous to run that ear up that track that night. I knew it was dangerous. I had an ordinary lantern for light. I knew where the trail was that came out of the bottom that crossed the road. I knew that stock came from the bottom over the trail, hogs traveling at night. We could run about as well that night without the light as with it, because the moon was shining. I could have seen a couple of hundred feet up the track the way the car was loaded in the daytime. I had the right of way cleared at that place. A car running 15 miles an hour loaded like this was with the engine cut off and the brake not applied would run 100 feet. It would gradually go slower until it stopped.”

There was evidence to the effect that if Iverson had been keeping a proper lookout he could have seen the hog in time to have avoided the accident by the use of ordinary care.

Without further setting out the testimony in detail, our conclusion is that the evidence is sufficient to sustain each and all of the findings of the jury before set out, and that none of said findings is against the great weight and preponderance of the evidence.

This conclusion disposes of the first assignment of error presented in appellant’s brief, which assails the verdict on the ground that “it is contrary to the evidence and against the great weight and preponderance of the evidence.” Appellant’s contention under this assignment that, appellee’s wife being a mere licensee on appellant’s car, she was bound to accept the conditions of the car, tramroad, equipment, and speed of the car as she found them, is not a correct statement of the law. Conceding that Mrs. Phelps was only a licensee and was therefore bound to accept the roadbed, car, and equipment in the condition in which she found them when she took passage thereon, she did not by going upon said car assume the risk of injury caused by the negligence of the operator of the car, and it was the duty of Iverson, who. was operating the car, to use ordinary care to prevent injuring any person who was lawfully thereon. The 'fact that Mrs. Phelps was not a passenger for hire and that appellant was under no contract or obligation of any kind to carry her on the car did not relieve it of any duty to use ordinary care in the operation of the car. Under appellant’s propositions it matters not how reckless may have been the speed of the car, nor how utterly- wanting the operator may have been in the' use of care to discover obstructions upon the track, appellant would not be liable for injury thereby caused appellee’s wife. The authorities do not sustain this proposition, and such a rule would be violative of that principle of justice and right which holds every person responsible for his negligent acts or omissions by which another is caused to suffer injury and loss, when the injured party is himself guilty of no wrong and no negligence which contributes to the injury. Prince v. Railway Co., 64 Tex. 144; Kirby Lumber Co. v. Gresham, 151 S. W. 847.

The second and third assignments of error, which complain of the refusal of the trial court to give special instructions requested by appellant, cannot be sustained because no bill of exceptions was taken to the action of the court in refusing to give the requested instructions. Railway Co. v. Churchill, 171 S. W. 517; Conn v. Houston Oil Co., 171 S. W. 520; O’Neil Engineering Co. v. City of San Augustine, 171 S. W. 524.

If a proper bill of exceptions had been preserved and the questions raised by the assignments properly presented, the assignments could not be sustained because the charge given by the court correctly submitted the issues raised by the evidence and the requested charges were not necessary to enable the jury in understanding and applying the law to the facts shown by the evidence.

We think there is no error in the record which requires, or would authorize, a reversal of the judgment of the court below, and said judgment must be affirmed

Affirmed.
      <®=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=»For other cates see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    HOUSTON & T. C. R. CO. v. GANT et ux.
    (No. 5461.)
    (Court of Civil Appeals of Texas. Austin.
    March 31, 1915.)
    1. Appeal and Error <@=3231 — Reservation oe Grounds oe Review — Objections and Exceptions.
    In an action for the death of an infant, the court charged, if the jury found for plaintiffs, to find for them such sum as they believed to be the pecuniary value to the parents of the services of their deceased daughter from the time of her death until she would have arrived at the age of 21 years, after deducting the cost and expense of her maintenance for the same period of time, and that they might find such other sum as the evidence might show would be equal to the pecuniary benefit that the parents had a reasonable expectation of receiving from their daughter after she reached the age of 21 years, had she not died. Seld, that even though such instruction was on the weight of the evidence as assuming that, if the child had not died from the injury, she would have lived to the age of 21 years, the judgment would not be reversed for such error; the objection to the instruction having been general and not having pointed out the particular portion of the charge which was on the weight of the testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. <@=>231; Trial, Cent. Dig. §§ 689, 690.]

      2. Death <©=104 — Actions for Causing Death — Instructions—Damages.
    Such instruction was erroneous because of the failure to tell the jury that they could not allow damages for grief, loss of the child’s society, or mental pain and anguish; it not, as claimed, expressly limiting the recovery to the pecuniary value of the child’s services, as it did not expressly tell the jury that they could not allow damages other than the pecuniary value of her services.
    [Ed. Note. — Eor other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. <S=104.]
    3. Appeal and Error <©=1068 — Reservation oe Grounds oe Review — Measure oe Damages.
    The error in such instruction could not he regarded as harmless, though defendant made no complaint that the verdict was excessive, and the verdict was not in fact excessive, in the sense that the court would be justified in setting it aside as excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. <©=1068.3
    4. Appeal and Error <©=>216 — Reserving Error — Instructions — Necessity oe Requests.
    Assuming that the error in such instruction was merely one of omission and not a positive error, where defendant objected thereto because of the failure to exclude from the jury's consideration damages for grief, loss of the child’s society, and mental pain and anguish, and the trial court overruled such objection, defendant was not required to prepare and request a special instruction curing the omission, as the recent statute requiring objections to the charge to be presented in writing before the charge is read to the jury, besides requiring a dissatisfied litigant to afford the trial court an opportunity to correct alleged errors in the charge, is intended to allow such litigant the benefit on appeal of errors in the charge which he has pointed out, and which the trial court has refused to correct.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=>216; Trial, Cent. Dig. § 028.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by William M. Gant and wife against the Houston & Texas Central Railroad Company, Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Stribling & Stribling, of Waco, for appellant. James P. Alexander," of Waco, for appellees.
   KEY, C. J.

Wm. M. Gant and his wife recovered a judgment against the Houston & Texas Central Railroad Company, for damages on account of the death of their infant daughter; and the railroad company has appealed.

We sustain the second assignment of error, which complains of the court’s charge upon the measure of damages, which charge reads as follows:

“If you find for the plaintiffs, you will find for them such sum of money as, if all now paid at one time, you may believe from the evidence to be the pecuniary value at this time to the plaintiffs of the services of their deceased daughter, Mary Gant, from the time of her death until she would have arrived at the age of 21 years, after deducting therefrom the cost and expense of her maintenance for the same period of time. In estimating the value of her services, you may look to the habits and energies, the age and intelligence, and the disposition of the deceased child; and in estimating the cost of her maintenance you may take into consideration the probable cost of her food, clothing, and all such other expenses as her parents would probably have incurred on her account during the period of her minority. And, if you find for plaintiffs, you may find such other sum as the evidence mpy show would, if all paid now, be equal to the pecuniary benefit that plaintiffs had a reasonable expectation of receiving from their said daughter, from the amount, if any, they had after she reached the age of 21 years, had she not died.”

The bill of exception shows that appellant presented timely written objections to the court’s charge, one of which complained of that portion of it quoted above as being upon the weight of evidence, and because it “does not exclude from the consideration of the jury those elements of damages which the jury should not consider, such as grief, loss of society of said child, mental pain and anguish, and such other elements as the jury might improperly consider in a case of this sort, other than of a pecuniary nature.” We have a statute which prescribes that, in charging a jury, the judge shall not comment upon the weight of testimony; and, in construing that statute, our Supreme Court has held that it'is reversible error for a presiding judge, either directly or indirectly, either by express statement or by implication, to convey to the jury his opinion as to the weight of material testimony, except in cases where the evidence is so clear and undisputed as to justify a peremptory instruction to find a verdict for one of the litigants. It is' contended by appellant that the charge in question falls under the condemnation of the decisions referred to, because of the fact that it assumed that, if the child had not died on the occasion in question, it would have lived to the age of 21 years. If the charge is subject to that criticism, still, as the objection that was presented to the court was general and did not specify the particular portion of the charge alleged to be upon the weight of testimony, we would not hold that the case should be reversed for that reason; hut the other objection was specific, and, in our opinion, it should have been sustained and the charge corrected in that respect, In Railway Co. v. McVey, 99 Tex. 28, 87 S. W. 328, in construing a charge similar in principle, our Supreme Court held that, on account of certain omissions, it was misleading and contained affirmative error; and we copy from that opinion as follows:

“The charge under consideration is as follows: ‘If you find from the evidence and under the charges of the court for the plaintiffs, you will assess their recovery of damages at such amount, if paid now, as to fully compensate them for the actual damages, if any, sustained by them, as shown by the evidence, and such as is fairly proportioned to the injury sustained, if any; but you will not allow the plaintiffs anything by way of solace for the death of said Edward McVey, or for any sorrow or anguish suffered by them as a result of such death.’ Our statute, which gives a right of recovery for injuries resulting in death, provides, among other things, that ‘the jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so received shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict.’ Rev. Stat 1895, art. 3027. There could hardly be a statute more vague in its terms than this. It is, however, settled by our decisions that the damages which may be recovered under the statute are such pecuniary benefits as the plaintiff had a reasonable expectation of receiving from the deceased, had he lived. City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519. By pecuniary benefits is meant not only money, but everything that can be valued in money, and includes, in case of a minor child who is suing for the death of a parent, the reasonable value of such nurture, eare, and education as the child would have received from the deceased parent, had such parent lived. But neither sorrow for the death of the deceased relative (Houston City R. R. Co. v. Sciacca, 80 Tex. 350, 16 S. W. 31), nor the loss of his or her society (T. B. & H. R. R. Co. v. Warner, 84 Tex. 122, 19 S. W. 449, 20 S. W. 823), are recoverable in such cases. Now, we think it apparent that in the absence of some instructions, in a charge of this character, as to the damages which .were to be estimated and as to those which were to be excluded, a jury would be likely to give compensation both for the grief and the loss of society caused by the death. In the case of Galveston, Harrisburg & San Antonio Ry. Co. v. Worthy, 87 Tex. 459, 29 S. W. 376, the trial court charged the jury upon the measure of damages as follows: ‘In case you find for plaintiffs, you may give them such damages as you may think proportioned to the injury resulting to plaintiffs from the death of II. C. Worthy,’ etc. This charge was held to be erroneous, not for the reason that it directly announced any incorrect proposition of law, but because it did not go further, and instruct the jury that it was only pecuniary damages which could be allowed; that is to say, as we understand, only compensation for pecuniary loss, or the loss of something the value of which is ordinarily capable of being estimated in money. The instruction in this case does not, as that in Railway Co. v. Worthy, supra, stop with telling the jury that they ‘may give such damages as they may think proportioned to the injury.’ but goes further, and instructs them not to allow anything ‘by way of solace’ or for ‘any sorrow or anguish suffered by them as a result of’ the death. This instruction, as we construe it, means merely to exclude a recovery by the plaintiffs of any compensation for the grief caused by the death of the husband and father. It does not exclude compensation for the loss of the society or companionship of the deceased, which, in the opinion of some, if not all, of the jurors, may have constituted the most serious injury to the wife at least. Such being the case, to exclude one improper element of the damages and not to exclude another tends rather to aggravate than to alleviate the tendency of the charge to mislead. ‘The mention of one thing is the exclusion of another,’ is a rule in the construction of written instruments. It is no less a rule of common sense, and one which suggests itself to the ordinary mind, when construing language, either written or spoken, to which it is applicable. For example, let us suppose that during the deliberation of the jury in this case a suggestion had been made as to giving compensation for the grief of the plaintiffs on account of the death of their relative, the answer would have been that the court had instructed the jury not to give damages on that account. I-Iad the loss of society next been suggested, the answer would have been as ready and as conclusive that the court had not excluded that matter by its charge, and therefore the jury should consider and include damages, if any, on that score. We are of opinion, therefore, that the instruction under consideration was misleading; and we think also, by reason of its lack of proper limitations as to the elements of damages which the plaintiffs were entitled to recover, it probably led to the verdict in the case — a verdict seemingly excessive in amount, and certainly, under all the circumstances of the case, unprecedentedly large.”

That case has been followed in Railway Co. v. Farmer, 102 Tex. 235, 115 S. W. 260, and Railway v. Kemendo, 124 S. W. 968. We note the distinction which counsel for ap-pellee attempts to make between the charge in this case and those considered in the cases referred to. He asserts that no error was committed in giving the charge in question, because it expressly limited the plaintiff’s recovery to the pecuniary value of the services of the deceased child, and for that reason it was not necessary for the court to exclude therefrom other elements of damages not connected with or related to the services of the child. I-Ie also contends that the error referred to, if error it be, was a negative and not a positive error, and that appellant’s only remedy was to request a special charge supplying the alleged omission, which was not done. And his last contention is that as appellant is not complaining in this court of the amount of the verdict as being excessive, if error was committed in charging the jury upon the measure of damages, it should now be regarded as harmless.

'Considering these points in the order stated, we are unable to agree with appellees’ counsel in his assertion that the charge complained of expressly limited the plaintiff’s recovery to the pecuniary value of the services of the child. It did not tell the jury in so many words that they could not allow the plaintiffs damages other than the pecuniary value of the services of their deceased daughter; and therefore it did not expressly limit the jury to the question of pecuniary value of the services alone. This being the ease, and the jury not being instructed not to allow damages for grief caused by the death of the child, following the McVey Case, we hold that the error complained of probably misled the jury and caused them to allow compensation for grief and sorrow.

This disposes of appellee’s first and second contentions; as above set out, and leaves for consideration the proposition that the error referred to should be treated as harmless, because of the fact that appellant is not complaining in this court that the verdict is excessive. Appellant complains of the verdict as being unsupported by the testimony, and as contrary to the overwhelming weight of the evidence, but does not charge that, if appellees were entitled to recover, the verdict is excessive in the sense that it in-dieates that the jury was influenced by improper motives. In this class of cases, as .well as in many others, in fixing the amount of damages, the jury is permitted to exercise a very wide discretion, and verdicts are not regarded by appellate courts as so excessive as to justify setting them aside, although they may seem to be too large, unless the amount awarded indicates that the jury was influenced by some improper consideration. In this case the jury awarded the plaintiffs damages in the sum of $750 each on account of the death of their infant daughter; and, while we cannot hold that it is excessive in the sense that would justify this court in setting it aside, we do not think appellant should be cut off from its right to complain of the charge referred to, merely because it did not make another complaint which would have been futile. Counsel for appellee cite Railway Co. v. Stewart, 164 S. W. 1060, decided by the Dallas Court of Civil Appeals, as supporting his proposition that the failure to complain of the verdict as being excessive will justify holding that the error in charging upon the measure of damages should be treated as harmless. It appears to have been so held in that case, and perhaps this court has applied the same rule in a certain class of cases, but we do not think it should be held to apply in this class of cases. It would have been futile to seek a reversal on account of the amount of dam- ' ages awarded, and yet it is impossible to say .that the jury did not consider the question of mental suffering in fixing that amount. On the contrary, as held in the McVey Case, it is probable that they did.

Counsel for appellant contend that if .the error in the charge complained of and now under consideration was not a positive error, but merely one of omission, inasmuch as the recent amendment to the practice statute requires objections to the charge to be presented in writing before the same is read to the jury, the prior rule, requiring the complaining party to prepare and request a special instruction curing mere omissions in the court’s charge, should no longer obtain. In substance, the argument is that the amendment to the statute was enacted for a twofold purpose: (1) To require the dissatisfied litigant to afford the trial court an opportunity to correct alleged errors in its charge before the case is submitted to the jury; and (2) to allow such litigant the benefit on appeal of errors in the charge which he pointed out to the trial court, and the latter refused to correct. There is much force and plausibility in that contention, .which we sustain, and therefore hold that •it was not necessary for appellant to ask a special charge which the action of the court .in overruling the objection to the main charge indicates would not have been given. . The plaintiffs’ case is predicated upon substantially the following alleged facts: The plaintiff Mrs. Gant, at about 8:40 on a Friday night, boarded one of defendant’s chair cars and carried with her the infant child in question. According to Mrs. Gant’s testimony, on account of the heat in the car, she raised a window, which on account of a defective fastening, or of a sudden lurch and jerk of the train, or for both reasons, was caused to suddenly fall or come down, at which time the child had its hand on the window sill, and two of its fingers were severely mashed and bruised. In fact, there was some testimony tending to show that the bone in one of the fingers was broken. Apparently nothing very serious resulted until the’following Sunday afternoon, when the child became suddenly and violently ill. The symptoms were vomiting, jerking, and rigidity of the muscles, etc., and the child died the next day. A physician was called when the child was first taken violently ill, and he testified that, in his opinion, its death resulted from tetanus, commonly called lockjaw, and that it was caused by the injury to its fingers here-inbefore referred to. On cross-examination he testified that the incubation period of the tetanus bacillus in man is from 6 to 14 days, and stated that he meant by the incubation period the time from the Introduction of the germs to the symptoms. It was shown by the testimony of its mother that about 12 days prior to the death of the child one of its fingers was burnt on a hot stove, which caused a blister about the size of its finger .nail; that the blister broke, a scab came over the sore, and the place had about healed up when the child was taken sick. Three other physicians testified that, from the symptoms described by the attending physician, in their opinion the child did not have tetanus, and that it may have died as the result of ptomaine poisoning. However, they all three gave it as their opinion that, if it was a case of tetanus, the germs which produced that malady were introduced into the system by way of the burnt finger, and not through the injury to the other fingers caused by the falling of the window sash. Their reason for that opinion was based, it seems, upon the fact that medical science teaches that a longer period than 48 hours is required for the development of tetanus after the germ enters the system; the usual period being not less than 6, and extending, so one of them said, as far as 21 days. They all gave it as their opinion that, aside from tetanus infection, the injury to the fingers caused by the window sash would not have brought about the death of the child, though one of them stated that some other infection might have set up and might have had a secondary influence.

This being the condition of the testimony, appellant requested the court to instruct a verdict in its favor, and the refusal to do so is assigned as error; and it is also complained that the verdict is unsupported by the testimony. The writer of this opinion is disposed to hold that the verdict is so contrary to the overwhelming weight of the testimony that, if no other reason existed, the case should be reversed upon that ground; but, as the case is to be reversed for other reasons, the court has concluded not to make that a ground for reversal.

There are some other questions presented in appellant’s brief, which have been considered and are decided against it. For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      cgssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BROWN.
    (No. 5462.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 7, 1915.)
    1. Justices of the Peace <@=>141 — Appeal-County Court — Jurisdiction.
    The county court has jurisdiction of an appeal from the justice court involving the sum of $94.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. >@=>141.]
    2. Appeal and Error <@=>512 — Record—Intermediate Courts.
    A failure to note the pleadings of the parties upon the docket cannot be taken advantage of to procure reversal of a judgment of the county court rendered on appeal from the justice court.
    [Ed. Note. — For other cases, see Appeal and Error Cent. Dig. § 2326; Dec. Dig. <@=>512.]
    3. Carriers <@=o134—Carriage of Property —Actions eor Damages.
    Where a shipper is allowed without objection to testify regarding the value of property claimed to have been injured through the carrier’s negligence, there is sufficient basis for a judgment, though the statement as to value was not specifically as to the value at destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. <@=>134.]
    Appeal from Wharton County Court; J. R. Bowen, Judge.
    Action by J. O. Brown against the Galveston, Harrisburg & San Antonio Railway Company, begun in justice court and appealed by plaintiff to the county court. From a judgment there for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, Proctor, Vandenberge, Crain & Mitchell, of Victoria, and W. L. Hall, of Wharton, for appellant.
   MOURSUND, J.

We adopt’ appellant’s statement of the nature of the case:

“This suit was instituted in the justice’s court, precinct 1, of Wharton county, June IS, 1913, for the sum of $94.50, alleged damages to one car of potatoes shipped from Isanti, Minn., to Wharton, Tex., said potatoes being shipped by Varley-Wolter Company, and consigned to Varley-Wolter Company, at Wharton, Tex. The case was tried in the justice’s court December 29, 1913, resulting in a verdict in favor of defendant. The plaintiff appealed to the county court of Wharton county, April 17, 1914, the cause was tried in said court, and a verdict rendered in favor of the plaintiff , for the sum of $94.50, with interest thereon at the rate of 6 per centum per annum, from the 23d day of December, 1912, aggregating a total of $101.97.”

Judgment was entered in accordance with this verdict.

Appellant submits as a matter of fundamental error that the transcript from the justice’s docket is insufficient to show jurisdiction in the county court to render the judgment from which this appeal is prosecuted, There is no merit in this contention. _ The transcript shows that the suit was for damages in the sum of $94.50 to one ear of. “spuds.” The amount sued for was sufficient to confer jurisdiction upon the county court upon an appeal, and therefore the ruling laid down in the ease of Atchison, Topeka & Santa Fé Ry. Co. v. Moore, 139 S. W. 608, does not apply. Aside from the question of the sufficiency of the docket entries to show jurisdiction in the county court, it seems that the failure to note the pleadings of the parties upon the docket cannot be taken advantage of to procure a reversal of the judgment. Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289; M. P. Ry. Co. v. Shipman, 1 Tex. Civ. App. 407, 20 S. W. 952.

Appellant presents two assignments of error attacking the judgment on the ground that the evidence is insufficient to sustain it. In one assignment it is contended that no evidence whatever was adduced showing the market value of the potatoes alleged to have been damaged and that no evidence was adduced showing the quantity of the potatoes damaged. In the other assignment it is contended that the only testimony in regard to the value was that' of the plaintiff to the effect that he paid $1.35 per bushel for the potatoes. The testimony is uncontradicted to the effect that 70 bushels of potatoes were frozen and worthless. The plaintiff testified without objection that he paid $1.35 per bushel for the potatoes, that what he paid for them was their value, that the market value was $1.35 per bushel, and that the frozen ones were absolutely worthless. It is true that plaintiff did not state that the market value referred to by him was that existing at the place of destination; but, when the assignments of error are examined, it will be seen that this specific objection to. the sufficiency of the testimony was not pointed out in the motion for new trial. It was merely contended that there was no evidence whatever showing the market value of the' potatoes, and, as plaintiff had testified that their market value was $1.35 per bushel, the court naturally overruled the motion for a new trial. However, regardless of the defects in the assignments of error, we are of the opinion that when á party is permitted, without objection, to testify in regard to the value of property, as the plaintiff was in this case, his testimony furnishes a sufficient basis for the judgment.

The judgment is affirmed.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    WESTERN UNION TELEGRAPH CO. v. HOLCOMB.
    (No. 8104.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 27, 1915.
    Rehearing Denied April 3, 1915.)
    1. Appeal and Error <§=3-544 — Failure to Take Bill of Exceptions.
    Where appellant failed to take a bill of exceptions as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, providing that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to and exceptions shown by bill of exceptions, assignments of error as to the refusal of instructions will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2478, 2479; Dec. Dig. <®=»544.]
    2. Telegraphs and Telephones <S==>38 — Delay in Delivering Message — Mistake in Name of Addressee.
    In an action against a telegraph company for failing to deliver a message, informing the addressee that his brother was dying, in time for the addressee to attend the funeral, it was the telegraph company’s duty, notwithstanding that there was a mistake in the addressee’s name, to exercise ordinary diligence to deliver the message to the proper party, regardless of whether such mistake proximately contributed to the delay.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=>38.]
    3. Telegraphs and Telephones <®^38 — Delay in Delivering Message — Directions as to Delivery.
    Where the sending agent of a telegraph company had received specific instructions as to how the addressee of a message could be reached by telephone, but negligently failed to promptly transmit such information, and the receiving agent negligently failed to deliver the message after such directions had been received by him, a finding that the delay was caused by the negligent acts of both agents was warranted, notwithstanding a mistake in the addressee’s name.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=> 38.]
    4. Telegraphs and Telephones <§=338 — Delay in Delivering Message — Defenses— Fee for Delivery.
    It was no defense to an action for negligent delay in delivering a telegram, stating that the addressee’s brother was dying, that the contract with the telegraph company stipulated that an extra fee would be charged for delivering the message beyond its free delivery limits, and that no such fee was paid, where the message was forwarded from the receiving office to the addressee over the telephone line of another company; the fee for such delivery being paid to that company by the addressee himself.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. <§=3 38.]
    5. Telegraphs and Telephones <§3^71 — Delay in Delivery — Damages.
    A verdict of $1,000 for delaying the delivery of a telegram stating that the addressee’s brother was dying, and thereby' preventing him from attending the funeral, was excessive.
    [Ed. Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. <§=371.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by Fayette Holcomb against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Judgment reformed and affirmed.
    Arch Grinnan, of Brownwood, for appellant. Smith & Palmer, of Comanche, for appellee.
   DUNKLIN, J.

The disposition of a former appeal in this case is shown in 152 S. W. p. 190. The suit was instituted by Fayette Holcomb against the Western Union Telegraph Company to recover damages for the alleged negligent delay in the delivery of a telegram intended for him and reading as follows:

“Mt. Pleasant, Texas. March 18, 1911.
“Fate Hawkins, De Leon, Texas. Brother Jess sick. No chance for him. Come at once.
“[Signed] Lena Raney.”

Lena Raney was plaintiff’s sister, and she and her brother, Jess Holcomb, lived in the country about nine miles from Mt. Pleasant. Plaintiff resided in the country near Downing, a small town about eight miles from De Leon. A telephone line connected De Leon and Downing, and a telephone line ran from Downing to plaintiff’s residence. A person, at De Leon could talk to plaintiff at his residence over the telephone, but in order to do so it was necessary to call for him at the Downing Exchange, from which station direct connection could be made between plaintiff’s residence and De Leon. Jess Holcomb died at 4 o’clock on the afternoon of March 19th, and was buried pear his home at 4 o’clock on the afternoon of March 20th. The telegram was delivered to plaintiff at his home by telephone from defendant’s office at De Leon on the morning of March 20th, too late to enable him to attend the burial. Among other defenses the mistake in plaintiff’s address as Fate Hawkins, instead of Fayette Holcomb, was alleged as the cause of the delay in delivering the message. Melvin Tigert, at the request of Lena Raney, went to defendant’s office at Mt. Pleasant to have the message sent. At Tigert’s request W. S. Prestridge, defendant’s agent at Mt. Pleasant, wrote out the message. Tigert testified that 'he saw the same written, but claims that he gave the name of the addressee as Holcomb instead of I-Iawkins, and thought it was correctly addressed.. As held by us upon the former appeal, the mistake made by Prestridge, if it was his mistake and if he was negligent in making it, was not chargeable to the defendant, and the error on the former trial in submitting the alleged negligence of Prestridge in making the mistake as a ground of recovery was avoided on the last trial.

Tigert testified that at the time the message was delivered to the agent at Mt. Pleasant for transmission, he informed that agent that the addressee lived in the country near 'Downing, about eight miles from De Leon; that he had a telephone reaching his residence, over which he could be called from De Leon, and, according to other evidence, the message was in fact delivered to plaintiff in the form written by Prestridge, notwithstanding the mistake in the address. According to other evidence, a service message was sent to De Leon on the 10th of March by the agent at Mt. Pleasant giving the information that the addressee’s residence was near Downing, and that there was a telephone at his residence, but this service message did not correct the mistake in the address. According to the testimony of the agent at De Leon, immediately upon the receipt of the message on March 18th, he made diligent effort to locate Pate Hawkins by inquiry among citizens of De Leon, but was unable to find any one who knew of a man by that name. He further testified that after receiving the service message on the 19th of March, he tried to call up the Downing telephone office, but was unable to do so, as that day was Sunday and the telephone office at Downing was then closed. Early the following morning, which was Monday, March 20th, he did call for Pate Hawkins over the telephone at Downing, and in reply to this call was immediately placed in connection with plaintiff at his residence, and then read the message to the plaintiff, who at once knew that he was the addressee intended.

According to the testimony of the plaintiff, if he had received the message, even as late as Sunday afternoon of March 19th, he could and would have gone to Mt. Pleasant, thence to the home of his brother, Jess Holcomb, and would have reached that destination in time to attend the burial, but that when he received the message on Monday morning, it was then too late for him to do so.

The first four assignments of error are addressed to the refusal of special instructions requested by appellant. The record fails to show that appellant took any bills of exceptions to the refusal of the instructions requested, as required by article 2061, Vernon’s Sayles’ Tex. Civ. Stat., which was enacted by the Thirty-Third Legislature of 1913 (chapter 59). It is therein provided that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved unless excepted to and such exceptions shown by proper bills of exception. The failure of appellant to comply with this statute is made the basis of objections by 'appellee to a consideration pf the four assignments mentioned above, and such objections must be sustained. Cleburne St. Ry. Co. v. Barnes, 168 S. W. 991; Stephenville, North & South Texas Ry. Co. v. Wheat (No. 8015) 173 S. W. 974, by this court, not yet officially published.

Furthermore many of the questions presented by these assignments ,were decided adversely to appellant on the former appeal.

By another assignment appellant insists that it is shown by undisputed evidence that its agent at Mt. Pleasant did not know the message was sent for the benefit of plaintiff. This contention is predicated upon the mistake in the name of the addressee. As held by us on the former appeal, notwithstanding the mistake in the name of the addressee, it was the duty of the defendant to exercise ordinary diligence to deliver the same to the proper party. The agent at Mt. Pleasant himself testified that Melvin Tigert told him, at the time the message was deposited in that office for transmission, that the addressee had a telephone connection with De Leon and lived about eight miles from De Leon, but he did not communicate that information to the De Leon office until Sunday, March 19th, when he sent a service message. The evidence and facts recited already were sufficient to support the finding by the jury of negligence in failing to transmit and deliver the message in time to enable the plaintiff to make the trip necessary to attend the burial of his brother.

Appellant insists, further, that the evidence conclusively shows that the mistake in the name of the addressee proximately contributed to the delay in delivering the message, and by reason thereof the court erred in failing to grant a new trial. This assignment is overruled, in view of the authorities cited on the former appeal, to the effect that, notwithstanding a mistake in the name of the addressee, the telegraph company owes the duty to exercise'ordinary care to deliver the same to the proper person, and a failure to exercise such diligence is actionable. Furthermore, according to Tigert’s testimony, specific instructions were given to the Mt. Pleasant agent relative to how the addressee could be reached by telephone; and, according to the undisputed evidence, as soon as the De Leon agent resorted to that method, he was promptly put in communication with the plaintiff. Under such proof the jury were warranted in finding that the real cause of the delay in delivering the message was the negligent failure of the Mt. Pleasant agent to communicate to the De Leon office the information, which Tigert testified he gave Prest-ridge and noted above. Further, the evidence was sufficient to support a finding that the De Leon agent, after receiving the service message on Sunday, March 19th, to the effect that the addressee lived near Downing and could be reached by telephone, was guilty of negligence in not delivering the message on that date, and in time to have enabled the plaintiff to reach his brother’s home before the burial.

By another assignment it is insisted that, as the telegram contained a printed stipulation on the back thereof, which was expressly made a part of the defendant’s contract with the sender, that for the delivery of the message beyond its free delivery limits an, extra fee would be charged, and that in case the message was forwarded, over the lines of any other company in order to reach its destination the sending company would do so as the agent of the sender, and as no extra fee was paid to send the message, and as the charge by the telephone company for the service of its lines in delivering the message from the De Leon office was 25 cents, no liability was shown on the part of the defendant. The undisputed proof shows that Melvin Tigert paid to the agent at Mt. Pleasant 40 cents, the fee that was charged, and that no extra fee was demanded for delivery at plaintiff’s residence, which at the time that agent knew was some eight miles from De Leon. The record further shows that the telephone charge of 25 cents for transmitting the message to plaintiff over the telephone from the office at De Leon was paid by the plaintiff,, and not by the defendant. The question here presented was decided adversely to appellant on the former appeal, and we adhere to that ruling upon the authorities then cited.

By another assignment it is insisted that the judgment, which was for the sum of $1,000, was excessive. According to plaintiff’s testimony, he moved from Titus county to Comanche county in the year 1904. During the time plaintiff lived in Titus county, Jess Holcomb, his brother, lived with him until the latter married, and then lived about a mile and a half from plaintiff’s residence. Plaintiff further testified:

“I suppose Jess had been married about a year and a half when I left Titus county. No; Jess was not my youngest brother. Jess was 27 years old when he died. I regarded my brother Jess very highly as a brother. He and I were always very friendly. It had been something like 4 years at the time my brother died since I had seen him. * * * When I found out I could not see my brother in his lifetime, and then could not even attend his funeral, I could hardly describe my feelings. I felt mighty bad, and was hurt' badly over it.”

He further testified that he made no effort to have the burial postponed in order to enable him to attend the funeral; that he could have taken the train on Monday afternoon and reached his brother’s home the following morning at about 4:40 o’clock; that his brother did not have any one to write him of his illness; that he had never been to Mt. Pleasant since his brother’s death.

We recognize the rule that the amount of damages to be awarded in such cases as this is to be determined by the jury, and that the verdict will not be disturbed unless clearly excessive. Further, we are not unmindful of the rule that the facts of each case must be the guide in determining the amount of damages to be awarded. But we are of the opinion that the facts detailed by the plaintiff himself clearly - do not warrant the amount of damages awarded. Accordingly, the assignment of error now under discussion, is sustained, and for that error the judgment will be reversed, and the cause remanded, unless appellee shall, within 10 days from, the date of this decision, file a remittitur of $500. If such remittitur is filed, then the judgment will be reformed and affirmed for that amount.
      <§=3For. other cases see same topic and KEY-NUMBER in all KeyrNumbered Digests and Indexes


author: CONNER, C. J.

text:
    KELL et al. v. ROSS.
    (No. 8107.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 20, 1915.
    Rehearing Denied March 27, 1915.)
    1. Appeal and Error <$=215 — INSTRUCTIONS —Objections—Review.
    An instruction to which no objection was presented must, under the amended law, be deemed on appeal as-approved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <$= 215.]
    2. Appeal and Error <§=1051 — Erroneous Admission op Evidence.
    Where witnesses, testifying without objection, proved the due execution of a will, error in admitting testimony of an attesting witness alleged to be- incompetent because the husband of a chief beneficiary as to the execution of the will was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <$= 1051.]
    3. Property <$=9 — Title—Evidence—Admissibility.
    In a will contest on the grounds of mental incapacity and undue influence, testimony of witnesses that it was their understanding that a son was the purchaser and reputed owner of real estate described in the will, reciting that the same had been advanced to the son, was incompetent.
    [Ed. Note. — For other cases, see Property, Deo. Dig. <§=9; Evidence, Cent. Dig. §§ 144, 474%, 1220, 2171.]
    4. Appeal and Error <$=1057 — Harmless Error — Erroneous Exclusion of Evidence.
    Error in excluding evidence to establish a fact established by evidence received without objection is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199, 4205; Dec. Dig. <$=1057.3
    5. Wills <$=53, 164^-Contests — Evidence— Admissibility.
    In a will contest by a disinherited son on the grounds of testamentary incapacity and undue influence exerted by another son, evidence that the latter son had unlawfully deprived contestant of property was inadmissible.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 111, 112, 120-130, 403-414; Dec. Dig. <S=53, 164.]
    6. Appeal and Error <$=742 — Questions Reviewable — Remarks of Court.
    Assignment of error that the court erred in making remarks tending to discredit a witness must be overruled where the statements under the assignment does not disclose the testimony of the witness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <$=742.]

      7. Wills @==>330 — Contests—Evidence—INSTRUCTIONS.
    Where, in proceedings to contest a will on the ground of mental incapacity, there was evidence that testator was mistaken as to having made advancements as recited in the will, and that before execution of the will he was cranky, but the attending physicians and the attorney drawing the will declared that he at the time of the making of the will, about two months before his death, was of sound and disposing mind, an instruction that testator, to possess mental capacity, must have had capacity to know and understand what he was doing and the effect of his act at the time he executed 'the will, sufficiently submitted the issue.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 779-781; Dec. Dig. @=>330.]
    8. Trial @=>257 — Questions Review able— Instructions — Requested Instructions.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing for the submission of the charge to the parties or their attorneys for inspection, and requiring the giving of the charge before the argument is begun, contemplates that special instructions shall be requested in such time as to enable the court to submit the same if given together with the main charge before commencement of argument.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 642-645; Dee. Dig. @=>257.]
    9. Wills @=>55 — 'Testamentary Capacity— Insane Delusion — Evidence.
    That testator at the time of the execution of; his will labored under the delusion of having made advancements recited in the will, when, in fact, he had made none, does not alone raise the issue of insane delusions.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. @=>55.]
    Appeal from District Court, Hood County; W. J. Oxford, Judge.
    Proceedings by J. B. Ross for the probate of the will of M. Kell, deceased, in which Mat L. Kell and another appeared as contestants. From a judgment admitting the will to probate, contestants appeal.
    Affirmed.
    Estes & Estes, of Granbury, and Jas. C. AVilson and R. L. Stennis, both of Dallas, for appellants. W. D. Allison, of Spur, W. L. Dean, of Granbury, and John J. Hiner, of Ft. Worth, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

For a statement of the nature of this case we quote what was stated by Mr. Justice Dunklin on a former appeal (159 S. W. 119) viz.:

“J. B. Ross instituted this suit in the county court of Hood county to probate a certain instrument in writing purporting to be the. last will and testament of M. Kell, deceased; Ross being named as independent executor of the will. Texanna Kell and Mrs. Christina Foreman, daughters of the deceased, were the principal beneficiaries of the will. Mat L. Kell and T. J. Kell, two of the sons of the deceased, contested the application for the probate of the instrument, but in the county court the contest was overruled, and the will duly admitted to probate. The contestants appealed the case to the district court of Hood county, in which court J. S. Kell, another son of the decedent, also appeared as a contestant, adopting the pleadings of the other two contestants.
“By the terms of the will two lots in the town of Granbury, apparently of little value, were devised to Henry C. Kell, another son of testator, but soon after the execution of the will testator executed to Henry C. Kell a bill of sale to a stock of horses and cattle.
“The tenth and eleventh paragraphs of the will are as follows:
“ ‘Tenth. My deceased wife and myself having already advanced to my son Mat L. Kell, 160* acres of land known as the Bruington place in Hood county, Texas, by deed duly recorded in-the deed records of said county, which land was. valued at about the sum of eighteen. hundred dollars ($1,800.00), and also having advanced to him two black mares of the value of one-hundred dollars, and also having advanced to-him four hundred and fifty dollars in cash with which to assist him in making payments on-lands purchased by him and owned by him in Hood county, Texas, all of which advancements were made to him out of the community estate-of myself and deceased wife, M. O. Kell, it is therefore my will and desire that the said Mat L; Kell have no part or lot in the estate possessed by me at the time of my death, he having already received such portion thereof, and of his. mother’s estate, that I desire him to have.
“ ‘Eleventh. I have already advanced to my son T. J. Kell, the sum of seven hundred and. fifty dollars ($750.00) which he received from the sale of certain property in Floyd county,. Texas, as an advancement to him out of his interest in his mother’s estate, and have also advanced to him out of his interest in his mother’s-estate eight head of horses of the value of sixty-five dollars per head, which advancements are-about equal to the interest he would be entitled to in his mother’s estate; and it is my will, and desire that he have no lot or part in my estate at the time of my death.’
“In the contest filed it was alleged that testator was 85 years of age at the time the will was-executed) that, by reason of his extreme age and the impaired condition of his health, he was not possessed of sufficient mental capacity to make a valid will. As a further ground for the-contest it was alleged that the facts recited in the two paragraphs of the will above quoted: were false, and that the testator had been induced to believe that the same were true by fraudulent representations made to him by Henry G. Kell, and that by reason of such misrepresentations testator had been induced to exclude-Mat L. Kell and T. J. Kell from shares in his-estate. The pleading then continues with specific allegations that Mat L. Kell had purchased’ and paid for the 160 acres of land known as. the ‘Bruington place’ and the two black mares-mentioned in the tenth paragraph of the will, and, further, that testator had never at any time advanced to said Mat. L. Kell the $450-mentioned in the same paragraph as an advancement, and that neither the money nor the horses mentioned in the eleventh paragraph of the will, were ever, in fact, advanced to T. J. Kell.”

On the former appeal the judgment, which was in favor of the present appellants, was-reversed because the court had admitted over the objection of the proponent Ross the-testimony of the contestant Mat L. Kell, to the effect that he (Mat L. Kell) had loaned his deceased father the sum of $485 some-20 years before the trial with which to assist the father in building his residence, and that the father had always agreed to repay to the-witness said sum, and had recognized the-justness of the claim. The objection was based upon article 3690 of the Revised Statutes of 1911, which in the present appeal is again invoked, and which, therefore, will be-here set out. The article referred to reads:

.“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

On the last trial the court submitted the cause upon the following special issues:

“Special issue No. 1: Were Dr. W. S. Walker and J. T. Eoreman, on the 6th day of February, 1911, each credible persons? Answer this ‘Yes’ or ‘No.’
“Special issue No. 2: Was M. Kell of sound mind at the time he executed the document dated February 6, 1911, purporting to be his last will? Answer this ‘He was’ or ‘He was not.’
“Special Issue No. 3: At the time M. Kell executed the paper purporting to be his last will, dated February 6, 1911, was his mind either from sickness, disease, or mental decay, or, from overweaning confidence, subject to the domination and control of his son Henry O. Kell, or of any other of the beneficiaries named in contestants’ answer? Answer this ‘It was’ or ‘It was not.’ ”

The issues were accompanied by appropriate instructions, and the jury returned the following answers:

“To special issue No. 1 we answer: Yes.
“To special issue No. 2 we answer: He was.
“To special issue No. 3 we answer: It was not.”

Judgment was accordingly rendered for the proponent, J. B. Ross, and the contestants have appealed.

It is objected that the court erred in permitting the witness J. T. Foreman to testify, not therefor having been called by the contestants, that the deceased testator, M. Kell, requested the witness to sign the will in question on the date of its execution. It appears that at the time of the execution of the will and of J. T. Foreman’s signature thereto as a witness he (Foreman) was the husband of one of the daughters (Christina) of M. Kell, deceased, who was one of the principal legatees in the will. It further appears that after the execution of the will by M. Kell Christina Foreman died intestate and without children, and that later J. T. Foreman married Texanna Kell, the remaining daughter of M. Kell, deceased, also one of the principal devisees in the will, and that the relation of husband and wife existed between J. T. Foreman and Texanna Foreman at the date of the trial. It is insisted that the testimony objected to is in contravention of the article of the statute hereinbefore quoted; the contention being that Foreman, as heir of his first, wife, and as the husband of a surviving devisee, was disqualified as a witness under the article. By another assignment for the same reasons objection is made to the further testimony of J. T. Foreman that a day or so prior to the execution of the will M. Kell, the testator, requested the witness to go after John J. Hiner, the attorney who later wrote the will in question.

We have not found it necessary to decide the question of the witness Foreman’s disqualification under the article of the statute referred to, for the reason that in any event the court’s ruling, if available in behalf of appellants at all, was harmless. While in one of the paragraphs of the contestants’ pleadings it was alleged that the will in question had not been executed under the formalities required by law (see R. S. 1911, art. 7857), there seems to have been no serious contention of this kind on the trial as a ground for setting the will aside. The court instructed the jury that:

“In the first place, then, you are instructed that the uncontradicted evidence in this case shows that the instrument dated February 6, 1911, purporting to be the last will and testament of M. Kell, deceased, is in writing; that it was read over to the said M. Kell; that thereafter the said M. Kell signed the same; that it was witnessed by Dr. W. S. Walker and J. T. Foreman; that said Walker and Foreman were each at said time above the age of 14 years, and that each of them subscribed their names to the instrument at the request of M. Kell, in his presence, and in the presence of each other; that M. Kell at said time was over the age of 21 years; that said instrument is the last paper executed by the said M. Kell which purports to be his will; that said M. Kell is dead; and that at the date of his death he resided in Hood county, Tex.”-

No objection to the charge so given was presented, which, under the terms of our amended law, must therefore be regarded as approved. See Cleburne St. Ry. Co. v. Barnes, 168 S. W. 991; Stephenville, North & South Tex. Ry. Co. v. Wheat (No. 8015) 173 S. W. 974, by this court, not yet officially published.

Moreover, Dr. W. S. Walker, one of the subscribing witnesses to the will, after identifying the signature of M. Kell to the instrument then exhibited to him, testified:

“I also identify the signatures of myself and J. T. Foreman to said instrument. I saw M. Kell affix his signature to that instrument [the will in question] on the 6th day of February, 1911. I also saw J. T. Foreman affix his signature to the same instrument on that same date. Mr. M. Kell asked Mr. J. T. Foreman and I to sign the instrument as witnesses in the presence of John Hiner. At the time this instrument was executed there were in the room John J. Hiner, myself, J. T. Foreman, one of the girls, and M. Kell.”

John J. Hiner testified, among other things:

“On Sunday I told Mr. Kell that he would have to have two witnesses to his will. He said: ‘Dr. Walker will be here Monday, and there will be somebody about the place that we can get for a witness.’ So when I read the will over to him and asked him if it suited him, he said it did, and I called to Dr. Walker and Mr. Foreman to come in, because Mr. Kell said he wanted to use Dr. Walker and Mr. Foreman as witnesses to his will. -I propped Mr. Kell up in bed either when I took the pencil memorandum in there or when I was reading the will to him; I don’t remember which; but I propped him up with a chair, and when Dr. Walker and Mr. Foreman came in I took a book off the table and got the pen, and held the book on the old gentleman’s knee, and he took this will in his left hand, and with his right hand wrote his signature to the will in the presence of Dr. Walker and Mr. Foreman, and when he signed the will he turned to them and said, ‘Gentlemen, this is my will, and I want you to witness it for meand they took the will over to the South window, and they signed the will in the presence of each other, and Mr. Kell was sitting up in bed close to them.”

No objection has been presented to the testimony of Dr. Walker and Mr. Hiner above quoted, and yet another witness testified without objection that he heard M. Kell request Foreman to go after Mr. Hiner. It has been held in a long line of decisions in this state that a judgment will not be reversed because of the admission of illegal testimony where evidence of substantially the same effect has been admitted without objection. Appellants’ first, second, and third assignments are accordingly overruled.

In the tenth paragraph of the deceased’s will, the testator, as a reason for excluding Mat L. Kell as a devisee, recites:

“My deceased wife and myself having already advanced to my son Mat L. Kell, 160 acres of land known as the Bruington place, in Hood county, Texas, by deed duly recorded in the deed records of said county, which land was valued at about the sum of eighteen hundred dollars ($1,800.00), and also having advanced to him two black mares of the value of one hundred dollars, and also having advanced to him four hundred and fifty dollars in cash with which to assist him in making payments on lands purchased by him and owned by him in Hood county, Texas.”

And appellants in the fourth assignment insist that the court erred in excluding the testimony of the witness J. H. Bruington, to the effect that at the time he executed and delivered the deed conveying to M. Kell, deceased, said Bruington place, he understood the place to really belong to Mat L. Kell; the witness having already testified that he had contracted the place to Mat L. Kell, and that all negotiations had been conducted with him, but that at the last moment the deed had been made out and executed to M. Kell. By another assignment appellants also sought to show by Mrs. S. M. Eberhart that it was commonly reputed in the community of the Bruington place that it had been sold to Mat L. Kell. Mat L. Kell was permitted to testify without objection to the effeqt that he was in reality the purchaser of the Bruington place and paid therefor; that he later rented it without accounting to any one for the rents, and yet later sold the place, receiving the benefit of the purchase money, and to other facts in explanation of the transaction, and we can but approve the trial court’s ruling in excluding the offered testimony. A mere “understanding” of the witness Bruington and the neighborhood repute that Mat L. Kell was the owner, rather than M. Kell, deceased, at the time of the original purchase of the Bruington place, was clearly incompetent. Appellants’ fourth and fifth assignments are, accordingly, overruled.

The substance of the conversation over the telephone between a daughter of M. Kell and C. E. Lockley, excluded by the court, and to which error has been assigned, was repeated in the testimony of C. E. Lockley before the jury, which therefore, in any view of the matter, renders the exclusion of the conversation entirely harmless. Appellants’ sixth assignment is accordingly overruled. All of the testimony of Mat L. Kell recited in appellants’ seventh assignment of error which is available to appellants under their bill of exception was properly excluded by the court under our ruling made on the former appeal.

Among other things, appellants alleged that Henry O. Kell, a son of the testator, and one of the devisees, had unduly influenced his father to make the will as he did, and they sought to show by the witness Tom J. Kell, one of the contestants, that at a time designated in the testimony Henry C. Kell had unlawfully sold and disposed of at least 25 head of horses belonging to Mat L. Kell, one of the contestants who had been disinherited under the will, and that on another occasion Henry C. Kell sought by devious ways to deprive Mat L. Kell of a certain number of other young horses, and appellants in their eighth and ninth assignments of error complain of the action of the court in excluding the testimony referred to. In appellants’ statement under these assignments no conversation or act of Henry G. Kell having a direct connection with the deceased testator is pointed out which tends to show that Henry C. Kell influenced, or attempted to influence, the disposition of M. Kell’s property as made in the will, and we are of the opinion that the circumstances sought to be shown by Tom J. Kell and excluded by the court merely tend to show that Henry C. Kell committed crimes against his brother Mat L. Kell which are wholly collateral to the issues in this case. It is not shown in appellants’ statement referred to that Henry C. Kell at any time manifested ill will or malice toward his brother Mat L. Kell, and the proof offered in its nature could go no farther than to show that I-Ienry C. Kell was of a moral nature entirely consistent with the charge of undue influence made against him. We do not understand that a charge of fraud can be established by proof of other distinct frauds committed at other and different times. The court’s ruling is accordingly approved, and the eighth and ninth assignments of error overruled.

In the tenth assignment complaint is made of certain remarks of the court tending, as is charged, to discredit appellants’ witness P. L. Townes. An examination of the bill of exceptions fails to disclose that the precise remarks to which the assignment relates were, in fact, made. Moreover, in the statement under the assignment the testimony given by the witness before the jury is not set out or disclosed, so that we might determine whether .the court’s remárks had ■or could have any prejudicial effect. We must, therefore, overrule the assignment.

The court gave the following charge, among others:

“The term ‘sound mind,’ as used in special issue No. 2, means that the said M. Kell at the time of the execution of said instrument had the capacity to know and understand what he was doing and the effect of his act at the time he executed said instrument.”

To the definition of the term “sound mind” so given appellants duly objected, because, as asserted, it failed to include the requirements that the testator must have had sufficient capacity “to know the extent of his property and to know the natural objects •of his bounty and the claims of the natural objects of his bounty.” In the effort to correct the defect claimed, appellants requested the submission of the following special instruction, which was refused:

“By ‘sound mind’ is meant the ability to understand the business in which one is engaged, the effect of his acts, the capacity to know the •objects of his bounty and their claims upon him, .and the extent of his property.”

Error is assigned to the rulings indicated. As we think, amended article 1971 (Gen. Laws 1913, p. 113), relating to requests for special instructions, contemplates that such special instructions shall be requested in such time as to enable the court to submit the same, if given, together with the main charge before the argument of counsel begins, to the end that counsel, in addressing the jury, may know the precise issues upon which the case is submitted, and it may well be doubted whether appellants’ objection to the court’s refusal to give the special charge above quoted is available to them for the reason that, as shown by the court’s explanation to the hill of exception, the special charge was presented more than two hours after the main charge had been read to the jury, and while counsel for appellants was closing the argument in their behalf. It was then too late without again opening the argument for appellee’s counsel to discuss or answer the enlarged definition of “sound mind,” as presented in the special charge. But, however this may be, we think, under the circumstances of this case, the definition given by the court was sufficiently comprehensive and correct to avoid any necessity of reversing the judgment below because of a failure to specifically include the element of knowledge of the natural objects of his bounty and their claims upon him. There is evidence which admits of the conclusions that the testator was mistaken as to having made certain advancements as recited in his will, and also as tending to show that the testator, before the execution of the will, was, as expressed by one of the witnesses, “cranky”; yet, on the whole, almost every witness who testified, including his attorney, John J. Hiner, who had acted for him in legal matters for years, and the physicians who waited upon him, declared that the testator at the time of the execution of his will, some two months prior to his death, was of sound and disposing mind. As illustrating this, the proof shows that the will in question was executed on the 6th day of February, 1911. Dr. J. R. Lancaster testified that he knew M. Kell intimately during his lifetime up to about the 1st of January, 1911, upon which last date he had a conversation with him, and that:

“His (M. Kell’s) mental condition at that time was as good as it ever was as far as I knew. * * * I never did observe any senile dementia in M. Kell. * * * He was an eccentric man, and a man of his own ideas, hard to change1 about anything, and I used to joke him a good deal. * * * I practiced for him a good many years. When I talked with him here at the bank, as stated, his mind was sound and all right in every way, so far as I knew.”

Mr. Hiner, among other things, testified:

“I had known Mr. Kell ever since I was a barefooted kid. I expect I have known him to remember him 30 years, and for the last 10 or 15 years I have represented Mr. Kell in his little business as his attorney whenever he needed me. In my relations with M. Kell as his attorney and in my long acquaintance with him I had opportunity of observing his mental condition prior to the 6th day of February, 1911, and on that date. I had occasion while discussing the terms and provisions of his will with him to observe his mental condition, and -I did observe it, and he was of just as sound mind at that time as he had ever been in the 30 years that I had known him.”

Dr. W. S. Walker, the family physician of the deceased, and who attended him in his last sickness, and who attested the will as one of the subscribing witnesses, after testifying to the length of his acquaintance and his opportunity of observing the mental condition of M. Kell at the date the will was executed, said:

“I had not seen any difference in the condition of his mind at that time (when the will was executed) from what it had been in 15 years. He was in his right mind. As far as I was able to detect, he was like he had always been since I had known him. I didn’t see any difference. I had never observed any evidences of insanity in M. Kell during the time I knew him. At least it had not developed when I was around him.”

Neither the evidence quoted in illustration, nor any other that has been pointed out to us, indicates that his possible forgetfulness in the matter of the advances, or his eccentricities, renders it probable that the testator at the time of the making of the will failed to have a knowledge of the objects of his bounty and of their claims upon him. By the court’s definition the jury were instructed that his mental capacity must be such as that he knew “the extent of his property” and “the natural objects of his bounty and the claims of the natural objects of his bounty.” The difference, if any, in the legal effect of the definition as given and that as requested is, as it seems to us, shadowy indeed, and we cannot think that, in any view •of tlie subject, we would be justified in reversing tbe judgment because of tbe complaint now under consideration. Indeed, we think the definition of “sound mind” as given by the court is substantially correct, or at least, as before indicated, there is nothing in the circumstances in this case rendering it misleading or prejudicially deficient. See 40 Cyc. 1004, par. “c”; Brown v. Mitchell, 75 Tes. 17, 12 S. W. 807; Allday v. Cage, 148 S. W. 838; Warren v. Ellis, 137 S. W. 1182. Appellants’ eleventh and twelfth assignments of error are, accordingly, overruled.

Complaint is made in appellants’ thirteenth assignment of error of the court’s failure to submit to the jury the issue of an Insane delusion, and in the fourteenth assignment the court’s action in refusing appellants’ special request for the submission of that issue is also complained of. The only evidence referred to by appellants as tending to show that the testator was possessed of an insane delusion at the time of the execution ■of his will is the fact, as they contend, that he was laboring, under the delusion of having made the advancements recited in the will, when the fact was otherwise. We do not understand that a mere mistake of fact of the kind indicated is sufficient to raise the issue of an insane delusion. It is said in 40 Cyc., beginning on page 1013:

“An insane delusion is a belief which has no basis in reason, and which cannot be dispelled by argument. A mistaken belief as to a matter of fact or illogical conclusion therefrom is not necessarily an insane delusion; neither is any belief or prejudice, however mistaken, which has some basis for it, as where those against whom the testator has a prejudice have sided against him in his quarrels, or have been lacking in interest or sympathy toward him when in trouble. One may have a delusion which does not imply or show unsoundnoss of mind, and even mistak•en unnatural prejudice may not be an insane delusion, all persons being subject to likes and dislikes; and, to prove an insane delusion, it must appear that there was no basis for it, and that attempts were made by reasoning to dispel it.”

See, also, In re Bartels’ Estate, 164 S. W. 859. In the case before us, while Mat L. Kell and T. J. Kell denied that advancements had been made to them as recited in the will, yet there was testimony tending to contradict them by witnesses offered in behalf of appel-lee, and there is no evidence tending to show that the deceased, after effort made to correct him, doggedly maintained the mistaken belief indicated, if he was mistaken. We therefore overrule appellants’ thirteenth and fourteenth assignments of error.

We fail to find any evidence sufficient to raise the issue of fraud, and, consequently, overrule assignments 15 and 16, complaining of the court’s action in refusing to submit that issue. The remaining assignment of error complains of the insufficiency of the evidence to support the verdict; but we think we have already recited enough of the evidence to show that the complaint cannot be maintained.

All assignments of error are accordingly overruled, and the judgment affirmed.
      <$=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <$=For other cases see same topic and KEY-NUMBER- in -all Key-Numhered Digests and Indexes