author: HIGGINS, J.

text:
    SOUTHWESTERN PORTLAND CEMENT CO. v. CHALLEN.
    (No. 777.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1918.
    Rehearing Denied Jan. 31, 1918.)
    1. MASTER AND SERVANT &wkey;>270(10) — Negligence — Evidence—Due Care.
    Where in an action for the injury of a servant by an explosion of coal dust a witness was asked, .“Can you get rid of that carbon in the air so there will be nothing in the air to explode?” to which witness answered: “Well, theoretically a device could be possible in which no explosion would occur. Practically I have never attempted it” — the question and answer were admissible that the jury might have all the facts before it to be considered and weighed in determining whether defendant used due care in providing a safe place for plaintiff to work.
    2. Trial &wkey;>244(4) — Instructions — Undue Prominence to Particular Matters.
    In an action for injury to a servant by explosion of coal dust, the repetition of a phrase in several questions to jury examined, and held not to have laid such undue stress upon the mere creation of coal dust as to suggest to the jury that the court believed such to be negligence on the part of the master, and for which he would be liable.
    3. Appeal and Error <&wkey;1070(2) — Harmless Error — Findings.
    Errors in the findings of a jury on particular issues do not require a reversal, where the findings on other issues are sufficient to support the verdict.
    4. Trial <&wkey;194 (19) — Special Issues — Comment on Weight op Evidence — “Acoumu- . LATE.”
    In a special issue “Do you find * * * that defendant allowed fine dust and coal to escape from its conveyors and elevators and accumulate in the coalhouse?” etc., the word “accumulate” was used in the sense of allowing the dust to “remain,” and was not a comment on the weight of the evidence, suggesting that the mere presence of dust created a dangerous condition.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accumulate.]
    5. Appeal and Error <&wkey;930(3) — Presumption— Special Issues — Findings.
    Where, in a ease submitted on special issues, the evidence is overwhelming that plaintiff has suffered the injury alleged, it will be presumed that this issue was found by the court for plaintiff.
    6. Trial <&wkey;351(2) — Special Issues — Requests.
    If the defendant wanted the special issue as to the injury suffered by plaintiff submitted to the jury, it was incumbent upon it to so request-in writing.
    7. Trial &wkey;>252(ll) — Instructions — Contributory Negligence — Conformity to Evidence.
    A charge that it was the duty of the servant to have acquainted himself with the general duties of his position examined, and held improper where there was no evidence as to any neglect of his duties; he being an electrician and under no duty to guard the premises against explosion.
    8. Master and Servant &wkey;>295(l) — Assumption of Risk — Instructions.
    A statement in a charge that a servant assumed the risks and dangers usually and naturally incident to his employment, but which ignores the rule that he does not assume risks due to the master’s negligence, is improper.
    9. Trial <&wkey;>252(ll) — Instructions — Conformity to Evidence.
    An instruction that an injured servant assumed the risks of such defects as were open to his inspection was improper, where the evidence showed that the servant did not know such defects would cause an explosion.
    10. Master and Servant &wkey;>295(7) — Instructions — Duties Imposed upon Injured Servant."
    An instruction that conveys the idea that the injured servant was bound to inspect and search for negligent acts and omissions of the master is improper.
    11. Trial &wkey;>253(4) — Instructions — Ignoring Issues.
    A charge that if the jury believed that the plaintiff, servant, knew of the defects in the machinery and appliances and failed to notify the master and continued in the service, the law would presume he assumed risks incident to the work held properly refused, because it ignored defendant’s negligence in furnishing a dangerous place to work, the danger being unknown to plaintiff.
    12. Master and Servant &wkey;>295(8) — Assumption of Risks — Obvious or Latent Defects.
    An instruction offered by master, defendant, that makes knowledge of patent defects a defense, where the danger therefrom was latent and beyond the knowledge of the injured servant, was properly refused.
    IS. Trial <&wkey;215 — -Inspection—Special Issues.
    A statement in .charge that if plaintiff assumed the risks, he could not recover for injuries was properly refused,, where the case was being submitted on special issues.
    14. Damages <&wkey;134(3) — Excessive—Loss of Earning Capacity.
    Where plaintiff was horribly burned, had suffered and still suffers intense pain, is in a permanently helpless and deplorable condition, having almost completely lost the use of his hands and has lost his earning capacity, a verdict in the sum of $20,000 is not excessive.
    Appeal from District Court, El Paso County; Ballard Ooldwell, Judge.
    Action by G. C. Challen against the Southwestern Portland Cement Company. Judgment for plaintiff, defendant appeals.
    Affirmed.
    Burges & Burges and S. P, Weisiger, all of El Paso, for appellant. Lea, McGrady & Thomason, of El Paso, for appellee.
   Statement of Case.

HIGGINS, J.

Appellant prosecutes this (appeal from a judgment in the sum of $20,000 rendered against it in favor of ap-pellee, Challen, on account of damages arising from personal injuries sustained by the latter. Appellant operated a plant for the manufacture of cement, and in the operation thereof had more than five people employed. Challen was employed as an electrician, and in the discharge of his duties had occasion to go into the coalhouse of the plant. The room in which he was working and a tunnel connected therewith had an accumulation of coal dust therein which became ignited in some way. This caused an explosion, in consequence whereof Challen was very severely burned and injured. The case was submitted to a jury upon special issues. These issues and answers are as follows:

“No. 1. Do you find from the preponderance of the evidence that defendant allowed fine dust and fine coal to escape from its conveyors and elevators and accumulate in the coalhouse and the tunnel thereof, and on the floors thereof, in piles and quantities? Answer: Yes.
“No. 2. If you answer Yes to question No. 1, then answer: Was it negligence on the part of the defendant to so allow such coal, if any, to escape and collect, if it did so? Answer: Yes.
“No. 3. If you answer Yes to questions Nos. 1 and 2, then answer: Was such negligence, if any, of the defendant, a proximate cause of plaintiff’s injury? Answer: Yes.
“No. 4. Do you find the defendant permitted its containers and conveyors to become and remain in bad repair, at the time complained of, by having holes in them, or their joints and connections loose? Answer: Yes.
“No. 5. If you answer Yes to question No. 4, then answer: Was defendant negligent in permitting the use of such containers and conveyors to be in the manner same were used? Answer: Yes.
“No. 6. If you answer Yes to questions 4 and 5, then answer: Was such negligence, if any, a proximate cause of plaintiff’s injury? Answer: Yes.
“No. 7. Do you find that defendant allowed quantities of ground coal to escape from its grinding mill and remain without being removed from its tunnel, coalhouse, and premises connected therewith? Answer: Yes.
“No. 8. If you have answered Yes to question No. 7, then answer: Was defendant negligent in so permitting such coal dust in its tunnels and coalhouse, if it did so? Answer: Yes.
“No. 9. If you have answered Yes to questions 7 and 8, then answer: Was such negligence of the defendant, if any, a proximate cause of plaintiff’s injury? Answer: Yes.
“No. 10. Do you find that the defendant failed to exercise ordinary care to sufficiently ventilate its tunnel and coal building to make them reasonably safe? Answer: Yes.
“No. 11. If you have answered Yes to question No. 10, then answer: Was the defendant negligent in failing to exercise ordinary care to ventilate the said premises, if it did so fail? Answer: Yes.
“No. 12. If you have answered Yes to questions 10 and 11, then answer: Was such negligence, if any, on the part of the defendant, a proximate cause of plaintiff’s injury? Answer: Yes.
“No. 13. Did the defendant cement company exercise ordinary care to furnish the plaintiff a reasonably safe place and reasonably safe appliances in which and with which to perform the duties of his employment to defendant? Answer: No.
“No. 14. If you answer No to the preceding question, then answer: Was such failure, if any, a proximate cause of plaintiff’s injury? Answer: Yes.
“No. 15. Do you find that the explosion at defendant’s cement plant was an unavoidable accident? Answer: No.
“No. 16. What sum do you find, if paid now, would reasonably compensate plaintiff for the injuries sustained by him; and, in estimating his damages, if any, you will take into consideration the mental and physical pain heretofore suffered by him, and if you believe that he will suffer mental and physical pain in the future, you may take that into consideration in estimating his damages. You may also consider the time heretofore lost by him, and if you believe that his ability to labor and earn money in the future has been diminished, you may take that into consideration in estimating his damages? Answer: $20,000.”

Opinion.

Plaintiff propounded to his witness Dawson the question: “Can you get rid of that carbon in the air, so there will be nothing in the air to explode?” The witness answered: “Well, theoretically, a device could be possible in which no explosion could occur. Practically, I have never attempted it.” It is objected that the question and its answer imposed a greater burden than the law requires, of defendant, in discharging its duty to provide a safe working place. The record discloses that in the manufacture of cement appellant ground coal into fine dust, and as grounds of negligence in failing to provide a safe working place, it was alleged that this dust was allowed to accumulate in the room where plaintiff was working and in the tunnel connected therewith. This dust accumulated in piles on the floor and permeated the atmosphere. The testimony shows that this created a highly explosive condition; that a spark would cause an explosion, or such explosion might be caused by the spontaneous heating of a pile of dust to the point of ignition. The question and answer ODjected to was admissible in order that the jury might have all of the facts before it to be considered and weighed by it in determining whether the defendant had used due care in providing a safe place for plaintiff to work. Railway Co. v. Pitts, 42 S. W. 255; Railway Co. v. Walker, 70 Tex. 126, 7 S. W. 831, 8 Am. St. Rep. 582; 3 Labatt on M. & S. (2d Ed.) par. 932.

Appellant insists that the action of the Supreme Court in granting a writ of error in the Moreno Case, 181 S. W. 221, is decisivei of its contention that the admission of this testimony was error. In granting the writ that court has noted: “We think tne seventh paragraph of the charge erroneous.” Such charge may be erroneous, but it would not necessarily follow that the evidence considered was inadmissible upon the question of due care. Even if the answer was inadmissible, its tendency, it would seem, was not harmful, but rather helpful to defendant.

Furthermore, the question and answer related to the elimination of the carbon floating in the air and the prevention of its ignition. In response to issues 1, 2, and 3, the jury has found that defendant negligently allowed the coal dust to accumulate on the floors of the coalhouse and tunnel, and that this was a proximate cause of the injury. The evidence had no bearing upon the negligent act of allowing the dust to so accumulate, and this could have had no influence on this finding. If inadmissible, it therefore is not ground for reversal.-

The second assignment is that the court erred in refusing to eliminate from its charge issues 1, 2, and 3, because the repeated use of the phrase in questions Nos. 1 and 8, “Do you find from a preponderance of the evidence that defendant allowed fine dust and fine coal to escape from its conveyors and elevators and accumulate in the coalhouse and tunnel thereof?” together with questions Nos. 2 and 3, 8 and 9, which were hypothetically based upon an affirmative answer thereto, laid undue stress upon the mere creation of dust, and suggested to the jury that the court was of the opinion that the mere creation of dust was negligence for which defendant would be liable.

We do not regard the objection well taken, but if it be, the same affects and the error relates only to the issues indicated. The findings upon other issues support the judgment, and any error in the particular urged to issues 1, 2, and 3 would not require a reversal. Steger v. Barrett, 58 Tex. Civ. App. 331, 124 S. W. 174; O’Farrell v. O’Farrell, 56 Tex. Civ. App. 51, 119 S. W. 899; Railway Co. v. Eddleman, 175 S. W. 775.

Under the third assignment it is further objected that the submission of question No. 1 without inserting the words “and remain” after the word “accumulate” was suffi-' cient to suggest to the jury that the mere presence of dust was in itself sufficient to create a dangerous condition, though not permitted to remain during the period of oxidation, and such submission was a comment upon the weight of the evidence. We do not regard the form of the question as suggestive that the mere presence of dust was in itself sufficient to create a dangerous condition, though not permitted to remain during the period of oxidation. The word “accumulate” was clearly used in the sense of allowing the dust to “remain,”' and the jury must have so understood it. Such form of submission was not upon the weight of the evidence, and if it was, the error, for reasons indicated above, is not reversible. What has been said likewise disposes of the second proposition subjoined to the third assignment.

Under the fourth assignment, it is complained that the court erred in rendering judgment against defendant because there is no finding by the jury that plaintiff has suffered the injuries complained of, and no issue in respect thereto was submitted to the jury. The evidence is overwhelming that plaintiff has sustained injuries as alleged, and it will be presumed that this issue was found by the court in favor of appellee. If appellant desired the same to be submitted to the jury, it was incumbent upon it to request in writing the submission thereof. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132.

Error is assigned to the refusal to submit the following charge:

“At the request of the defendant, you are instructed that it was the duty of the plaintiff, as an employs of defendant, to have acquainted himself with the general duties of his position; and he assumed at his peril the risks and dangers usually and naturally incident to his employment as such employ!, including the risks and dangers, if any, of such defects, if any, in the machinery located in and upon the premises where he was employed to work, as were reasonably open to his ordinary inspection and observation, under the circumstances. And if you believe from the testimony that the plaintiff knew of such defects, if any, as existed in the machinery and appliances shown to have been in use on defendant’s premises at the time of the accident, and that he failed to notify defendant of the dangers of same, but, without objection or protest, continued in the service of defendant, the law would presume that he assumed the risks incident to the work in and about said premises under the conditions then existing, and he could not recover in this case. Now, bearing in mind the above instruction, the court submits to you the following questions:
“(1) Did or did not the plaintiff know of the defects, if any, in the screw conveyor or elevator which he alleges existed at the time and prior to his injury, or could he have known of same by reasonable and ordinary inspection or observation, under the circumstances? Answer this Yes or No.
“(2) If you have answered the foregoing question in the affirmative, then the court submits the following question: Did or did not the plaintiff, having such knowledge, continue, without objection or protest, in the service of the defendant, in or about the premises, where said defects, if any, existed? Answer this question Yes or No.”

Aside from any question as to the constitutionality of the act of the Thirty-Third Legislature, c. 179, Reg. Sess. (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h to 5246zzzz), abolishing the defense of assumed risk, this charge was properly refused for the following reasons:

1. The first part of the charge to the effect that ii was the duty of plaintiff to have acquainted himself with the general duties of his position was improper, because there was no evidence or issue in the case as to any neglect of his duties; he being an electrician, and it not being claimed that it was his duty to guard the premises against explosions. Further, if such were an issue in the case, plaintiff would only be required to use ordinary care as distinguished from becoming a guarantor of acquiring absolute knowledge.

2. The statement in the charge that plaintiff assumed the risk and dangers usually and naturally incident to his employment ignores the rule that he did not assume risks and dangers due to the master’s negligence.

3. The statement that plaintiff assumed the risks and dangers of such defects in the machinery as were open to his inspection was improper, because it appeared from the evidence that he did not know that such defects would cause or lead to any explosion, thus ignoring plaintiff’s appreciation of the danger arising from the defect.

4. The charge was improper, in that it conveys the idea that plaintiff was bound by such negligence of the master as was open to his inspection and observation, thereby implying that it was his duty to inspect and search for negligent acts and omissions.

5. The requested charge was properly refused for the reason that the following part thereof was error, to wit:

“And if you believe from the testimony that the plaintiff knew of such defects, if anjr, as existed in the machinery and appliances shown to have been in use on defendant’s premises at the time of the accident, and that he failed to notify defendant of the dangers of same, but, without objection or protest, continued in the service of defendant, the law would presume that he assumed the risks incident to the work in and about said premises under the conditions then existing, and he could not recover in this case”

—because it ignored defendant’s negligence in furnishing dangerous premises, due to the accumulation of coal dust in the tunnel, unknown to plaintiff, and because it made a knowledge by plaintiff of defects a defense, even though plaintiff did not know of the danger likely to arise from such defects, which is not the law in a case like this, where the danger is latent, though the defect be patent, and because it excluded plaintiff’s right to recover for defects and dangers on the premises unknown to him.

6. The statement in the charge that if plaintiff assumed the risk he could not recover was improper in view of the fact that the case was being submitted upon special issues. Moore v. Coleman, 195 S. W. 212; Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132; Express Co. v. Rudman, 145 S. W. 268.

But if the charge had been given and the issues therein had been found against plaintiff, still, he would have been entitled to a judgment on the other findings of the jury not in conflict therewith, viz. that defendant was negligent, proximately causing the injuries: (1) In allowing coal dust to accumulate in the tunnel and coalhouse, thereby rendering the premises unsafe; (2) in failing to use ordinary care to furnish plaintiff a safe place to work; (3) in failing to use ordinary care to ventilate the building. Therefore the ruling on the requested charge is not material; it only relating to risks which plaintiff might have assumed because of defects in the appliances and in the machinery and not as to dangerous premises.

It is also assigned as error that the verdict and judgment is excessive.

The evidence discloses that plaintiff was horribly burned. 1-Ie is in a permanently helpless and deplorable condition. He has almost completely lost the use of his hands. His earning capacity is destroyed. He has suffered and still suffers intense pain. We regard the verdict as being in no wise excessive.

Affirmed.

WALTHALL, J., did not sit, being absent on committee of Judges assisting the Supreme Court.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes

      <gc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. LANE.
    (No. 285.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Trespass to Try Title <&wkey;41(l) — Sufficiency op Evidence.
    In trespass to try title, where both parties claimed through a common source, evidence held sufficient to show that a vendee in defendant’s chain of title was not an innocent purchaser for value as to a prior vendee in plaintiff’s chain.
    2. Deeds <&wkey;38(4) — Description — SuffiCIENCY.
    A patent ambiguity was not disclosed by a description of land as 1,000 acres lying on the “west of a half” of a named league rendering the deed void, where the record showed that the grantor only owned the west half of the league, making it apparent that the conveyance was of 1,000 acres of the west end of the east half of the named league.
    3. Vendor and Purchaser <&wkey;231(l) — Constructive Notice — Record op Deed.
    After a deed was recorded subsequent purchasers were charged with constructive notice thereof.
    4. Vendor and Purchaser <&wkey;231(3) — Bona Fide Purchasers — Notice—Record.
    Purchasers are only charged with notice of facts exhibited by the record, and not with such as might have been ascertained by such inquiries as an examination of the record might have induced a prudent man to make.
    5. Vendor and Purchaser <&wkey;231(3) — Bona Fide Purchasers —Notice —Chain op Title.
    Every purchaser of land is chargeable with all that the real estate records show in the claim of title under which he claims, including all recitations therein.
    Error from District Court, San Augustine County; W. R. Blackshear, Judge.
    Trespass to try title hy W. H. Lane against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Kennerly, Williams, Lee & Hill, of Houston, and H. O. Head, of Sherman, for plaintiff in error. Blount & Strong, of Nacogdoches, for defendant in error.
   BROOKE, J.

Defendant in error sued in trespass to try title for a portion of the Nathaniel Hyden headright league in San Augustine county, describing it as follows:

“Being 700 acres off the south end of a tract of 1,000 acres on said league, said 1,000 acres to be taken off the west end of the east half of said league.”

Defendant answered by general demurrer, general denial, and plea of not guilty.

Judgment was entered awarding to plaintiff the land sued for in his petition, said judgment containing the exception and notice of appeal. The case was tried before the court without a jury, and no motion for new trial was filed.

Plaintiff’s title was:

(1)Grant, State of Coahuila and Texas to Nathaniel Hyden, 10/14/35.

'(2) Nathaniel Hyden to Lansing & Watson, dated 7/2/36, filed 6/4/51, conveying the east half of the Nathaniel Hyden headright league. One the witnesses was John W. Holman.

(3) Lansing and Watson to John W. Holman, dated 9/14/36, filed 1/1/38, conveying the east half of the league. This deed recites that all the parties thereto were residents of San Augustine county, Tex. Same was acknowledged ’by James Lansing December 22, 1837.

(4) John W. Holman to James G. Barks-dale, dated 3/26/37, filed 4/4/74. This deed recites:

That the said John W. Holman, in consideration of $3,000 paid by Barksdale, “has granted, bargained, sold, and remised and quitclaimed, and by these presents doth remise and quitclaim, unto the said J. G. Barksdale, his heirs and assigns forever, to a certain tract or parcel of land * * * in the county of San Augustine, and coritaining one thousand acres. The said land lyes between the Eyish bayou and the River Angelina in the forks of said stream in Zavalla’s colony about 10 or 12 miles from the town of Jackson. The said land lies on the west of a half of the league of land obtained from the government by the citizen Nathaniel Hyden from the legal commissioner as a colonist, which may be seen by reference to the records at Nacogdoches. The field notes of said land is returned with the following account of timber, oak, ash, dogwood, gum, elm, etc., shoe-make and myrtle. * * * To have and to hold * * * said premises.”

It concludes with a special warranty. Said deed is witnessed by James Ellison and Sanford Holman, and was proved for record by the affidavits of Elizabeth Thomas and America Aiken, sisters of John W. Holman and Sanford Holman, to the effect that the handwriting of the said witnesses and the grantor was known to affiants, and that the signatures of their said names were in their handwriting. These affidavits were made at Shel-byville, Tenn., March 13, 1874.

(5)J. G. Barksdale and wife, P. A. Barks-dale, to W. H. Lane, dated 7/18/74, filed 5/6/13. This deed conveys all the right, title, claims, and interest—

“which we have in and to a certain tract of land containing 700 acres situate and lying in the county of San Augustine, state of Texas, in the south part of said county between the Ayish byo and Angelina river, said land being bought by us from John W. Holman and duly registered in the register’s office in San Augustine, on the 6th day of April, 1874, in Book J-2 pp. 502 and 503, for a more particular description of the 1,000 acres of which the above conveyance is a part, reference is here had. [The deed from John W. Holman to James G. Barksdale, supra, is recorded in Book J-2, p. 502.]
“To have and to hold the same to the said W. H. Land, his heirs and assigns forever. * * * ”

Said deed concludes with general warranty. It is acknowledged by them before the county clerk of Bedford county, Tenn., July 18, 1874. Said deed contains certificate of P. G. Steele, clerk of the county court of Bedford county, Tenn., dated May 2, 1913, and stating that Robert L. Singleton, whose name appears to the above certificate, was at that time county clerk of said county. It also contains certificate by the chairman of said county court that P. O'. Steele was the acting county clerk, and had been for more than ten years, and that his acts are entitled to full faith and credit. This certificate was dated May 2, 1913. Same contains a further certificate by P. O. Steele dated May 2, 1913, that W. E. Gant was the sole judge of the probate court of said county, and that the attestation was in due form of law.

John W. Holman was a common source of title, and one of the questions in the case rs as to whether William W. Holman, his vendee, was an innocent purchaser against the deed to Barksdale.

Defendant’s title is as follows:

(1) John W. Holman to W. W. Holman, dated 2/8/38, filed 2/12/48. This deed conveys, in consideration of $1,200 cash, the east half of the Hyden league, and contains general warranty. Same is headed. “Republic of Texas, County of San Augustine,” and was witnessed by S. Holman land Willis Jones, and-acknowledged in Shelby county, Tex., August 3, 1839.

(2) Wm. W. Holman to J. George Woldert, dated 7/7/58, filed 7/10/48, conveying a tract described by metes and bounds, and calling for bearing trees and other natural objects, stated to contain 425 acres out of the northeast corner of said league. This deed was acknowledged July 10, 1848.

(3) J. Geo. Woldert to Wm. W. Holman, dated 12/12/53, filed 12/12/53. Said deed conveys the same land conveyed in the foregoing deed, and concludes as follows:

“It is expressly understood that I warrant no further than me and heirs. Said land was sold to me by said William W. Holmes, and was surveyed out of a wrong league, which -will show on record in Book G, p. 2S4, we both have no right to it.” (Book G, p. 284, contains a record of the deed just preceding.)

This deed acknowledged December 12, 1853, by the grantor before the same officer as the foregoing deed was proved before.

(4) William W. Holman to George Woldert, dated 12/7/53, filed 12/28/53. This deed conveys 425 acres out of the northeast corner of the Hyden league. This deed was acknowledged by the grantor on the 2Sth day of December, before the same officer that the foregoing deed was acknowledged before.

(5) J. G. Woldert to G. W. Norsworthy, dated 11/12/81, filed 1/12/82. This deed conveys the same land as the foregoing deed, and was acknowledged by the grantor November 12, 1881.

(6) G. W. Norsworthy to H. Kempner, dated 2/28/82, filed 8/23/82. This deed conveys the same land as the foregoing. It was acknowledged by the grantor February 28, 1882.

(7) W. W. Holman to Bucius I. Holman, dated 1/8/74, filed 1/10/74. This deed conveys, in consideration of $500 cash paid, “810 acres of land part of the Nathaniel Hyden league, situate in the county of San Augustine and state aforesaid, and about 20 miles south of the town of San Augustine, the same to be an undivided interest in the Nathaniel Hyden league, and the said 810 acres of land being the interest owned by my father in the said league of land, as will appear by reference to the record of real estate for the county of San Augustine and state aforesaid, together with all and singular the rights, members, here-ditaments, and appurtenances to the same belonging, or in anywise incident of appertaining.”

This deed concludes with a general warranty. This deed- was witnessed by 'W. H. Grouch, and J. H. Shark. It is headed “State of Texas, County of San Augustine,” and recites that the grantor is a resident of San Augustine county, Tex., and the same was acknowledged by the grantor on the 8th of ¡ January, 1874, before the district clerk of San Augustine county, at San Augustine, Tex.

(8) Estate of B. J. Holman, by administrators, E. A. Blount and J. E. Harrison, to W. H. Ford, dated 9/23/81, filed 9/24/81.' This deed recites that on the-day of-, 1881, the county court of San Augustine county granted an order for the private sale of 810 acres of land, part of the Nathaniel Hyden survey, and that on September 16, 1881, the undersigned administrator of the estate of B. J. Holman, sold said 810 acres at private sale to W. H. Ford, which was duly reported and confirmed, as follows:

“In the Matter of the Estate of B. J. Holman, Deceased. September 21, 1881. * * * It is therefore ordered, adjudged, and decreed that said sale be confirmed, and that the report thereof be recorded by the clerk of this court according to law, and the administrators of this estate are ordered to make the proper conveyance of said 810 acres of land, N. Hyden survey, on the-Ayish bayou, in San Augustine county, Tex., to W. H. Ford, of Jasper, Tex., the purchaser at said sale for the sum of $567 upon his complying with the terms of said sale.”

Said deed then recites:

That, in consideration of the premises and of the payment of $567 cash, the said administrators “bargain, sell, and convey unto the said W. H. Ford 810 acres of land on the west side of the Ayish bayou, about 30 miles south of the town of San Augustine, and the said 810 acres hereby conveyed being an undivided interest in and to a tract of 1,864 acres, said 1,864 acres being all of the east half of the said Hyden league except a tract of 1,400 vrs. sq. in the northeast corner of said league, which was conveyed by W. W. Holman to J. G. Woldert, the-said Ford to have and to hold said 810-aerc tract of land unto himself, his heirs and assigns forever, in fee simple, as fully and completely as we, acting in our capacity as administrators, can convey the same.”

This deed is signed by E. A. Blount and J. E. Harrison, as administrators of the estate of B. J. Holman, deceased, and acknowledged by them September 18, 1881, before notary public in San Augustine county.

(9) W. H. Ford to G. W. Norsworthy, dated 9/28/81, filed 10/17/81. This deed conveys—

“810 acres of land of the headright survey of N. Hyden, situate on the Ayish bayou, in San Augustine county, state of Texas, it being the 810 acres of land conveyed to me by E. A. Blount and J. E. Harrison, administrators of the estate of B. J. Holman, deceased, on the 23d day of September, A. D. 1881, and to said deed reference is hereby made for a more particular description of said 810 acres of land herein conveyed.”

(10) Will of W. W. Holman, dated April 15, 1876. This will recites that the testator is a resident of Denton county, Tex., and provides that all his property, both personal and real, after payment of his debts, be equally divided between his wife, Ann Catherine Holman, and his two children, William B. Holman and John O. Holman, and appoints Bucius I. Holman as the executor of said will, and his (testator’s) wife, Ann Catherine Holman, to act as executrix of samé, and that if one refuses to act, that the other should act, if possible, and authorizes either to sell any of his lands to pay his debts. It provides that neither the district court of Denton county nor any other court of Texas should have anything to do with the administration of his estate except to have the will probated and recorded, and his property inventoried and apx>raised, and he directs that his executor and executrix be not required to give bond.

(11) Testimony of subscribing witnesses, dated July 22, 1876, and order of the probate court of Denton county on said date admitting said will to probate, and appointing Bucius I. Holman and Ann Catherine Holman as executor and executrix, without bond, as directed in said will. The date of the death of Holman does not appear thereon, except as shown by the affidavit it must have , been between July 22d and April 15th, the date of the will.

(12) Inventory of the estate filed by Copen-haver, W. Holford, and J. P. Anderson, sworn to July 25, 1876. It states that the said inventory is just and correct, to the best of their knowledge and belief, and it also contains an affidavit by Lucius I. and Ann Catherine Holman, stating that the said inventory is a full, fair, and complete inventory of said estate. The inventory of the real estate contains about nine tracts in Denton county, nine tracts in Harrison county, and six tracts in other counties, one of which is San Augustine county, and is a part of the Jones Hobby survey. The estate was appraised at $46,150.

(13) W. W. Holman,' by executrix, to G. W. Norsworthy, dated 10/19/81, and filed 11/9/81. This deed recites that Ann Catherine Drain, formerly Ann Catherine Holman, of Denton county, executrix of the will of W. W. Holman, deceased, her former husband, joined by her present husband, Sam Drain, of the county of Denton, in consideration of $1,000 cash paid, as such executrix does grant, bargain, sell, convey, release, and ^deliver unto the said G. W. Norsworthy in fee simple and absolute interest all the right, title, claim, and interest which the estate of my former husband, W. W. Holman, deceased had, or has in and to the east half of the Nathaniel Hyden league of land, lying and being situated in the county of San Augustine, Tex., on the Ayish bayou, about 3o miles south of the town of San Augustine, on the west side of the Ayish bayou. The abstract of title to the east half of said league of land is as follows:

“Government title to Nathaniel Hyden for one league of land, 10/14/35; Nathaniel Hy-den to Lansing & Watson for whole league, 7/2/36, Book H, 248; Lansing & Watson to John W. Holman for the east half of said league, September 14, 1836, Book D, 82; John W. Holman to W. W. Holman, east half of said league, February S, 1838, Book G, 231, and by this instrument of writing all of the said half league of land commencing at the bayou and running back with both of the original lines a sufficient distance to embrace one-half of said league is conveyed,' saving and excepting 810 acres conveyed to Lucius J. Holman, and a tract conveyed to J. G. Woldert by W. W. Holman in his lifetime on the 7th of December, 1853, out of the northeast corner of the said league. See Book I, p. 62, Records of Real Estate for said county of San Augustine, Tex. Together with all and singular the rights, hereditaments, and appurtenances to the same belonging, or in any wise incident or appertaining, to have ’ and to hold the same as fully and completely as I, the said Ann Catherine Drain, can convey the same by virtue of the said last will and testament of my former husband, W. W. Holman, deceased. * * *
“This salé being made for the purpose of meeting the payment of unsettled demands still due and unpaid from the estate of my -former husband, W. W. Holman, deceased, aforesaid.”

This is signed by Sam Drain and Ann Catherine Drain, executor and executrix.,of the last will and testament, and is properly acknowledged by both; the married woman’s form of acknowledgment being used by Catherine Drain.

(14) G. W. Norsworthy to H. Kempner, dated 12/7/81, nled 8/23/82. This deed conveys, in consideration of $1,000 paid by H. Kempner, that certain tract of land deeded to the grantor by Sam Drain and Catherine Drain by their deed of October 19, 1881, “said tract of land being the east half of the Nathaniel Hyden league of land, less 810 acres deed to Lucius J. Holman, and 425 acres conveyed to J. G. Woldert by W. W. Holman by his deed of conveyance bearing date the 7th of December, A. D. 1853.”

(15) Harris Kempner to G. W. Norsworthy, dated 8/18/83, filed 6/22/83. This deed conveys, in consideration of $3,862 cash paid, an undivided one-half interest in those four tracts in San Augustine- county, the first being 425 acres, more or less, a part of the Nathaniel Hyden survey conveyed to the grantor by G. W. Norsworthy by deed recorded in Book K, p. 407, of the Records of San Augustine county; second, being 979 acres, more or less, also a part of the Nathaniel Hyden league conveyed to grantor by G. W. Norsworthy by deed recorded in Book K, p. 406, of same records, being the same land conveyed to G. W. Norsworthy by Ann Catherine Drain, executrix of W. W. Holman, deceased, joined by her husband, Sam Drain; third, said tracts being 810 acres, more or less, also a part of the same Nathaniel Hyden survey or league of land conveyed to the grantor by G. W. Norsworthy by deed dated November 26, 1881, Book K, p. 404, of said records; fourth, this tract being out of the Patsey Lewis league.

(16) Power of attorney, H. Kempner to G. W. Norsworthy, dated 6/23/83, filed 6/28/83-, granting power to sell his half interest in those tracts described in the foregoing deed.

(17) Harris Kempner, by Attorney G. W. Norsworthy, to Beaumont Lumber Company, dated 8/1/83, filed 6/3/84. In consideration of $1,939 cash paid by F. L. Carroll, J. N. Gilbert, and G. E. Carroll, composing the firm of the Beaumont Lumber Company, and the further sum of $1,931 to be paid by said company February 1, 1885, with intertest from June 1, 1883, at 10 per cent, per annum, for which said company has executed its note of even date, to secure payment of which vendor’s lien is reserved, said Kempner, by his attorney in fact, conveys an undivided one-half interest in those four tracts described in the foregoing deed. The deed concludes with a general warranty.

(18) G. W. Norsworthy to Beaumont Lumber Company, dated 8/1/83, filed 6/14/84. This deed conveys, in consideration of $1,500 cash paid by the said Beaumont Lumber Company, composed as stated in the foregoing deed, and the further sum of $17,954 to be paid, to secure which vendor’s lien is retained, an undivided one-half interest in the lands described in the foregoing deed.

(19) E. L. Carroll, John N. Gilbert, and G.W. Carroll, partnership firm of Beaumont Lumber Company, to Beaumont Lumber Company, corporation,- dated 1/1/84, filed 11/28/99. This conveys, among other lands, the east half of the league of land granted to Nathaniel Hyden, being, the same lands conveyed to E. L. Carroll, J. N. Gilbert, and G. W. Carroll, composing the firm of B.eau-mont Lumber Company.

-(20) Beaumont Lumber Company and John H. Kirby to Houston Oil Company of Texas, dated 1/3/02, filed 5/22/02, being the same tracts conveyed in the foregoing deed.

(21) Judgment, W. L. Holman et al. v. Houston Oil Co., dated 7/6/11. By this judgment the plaintiff took nothing, and in favor of the Houston Oil Company of Texas for an undivided 810 acres of the east half of the league, excepting the 425 acres conveyed to Woldert, and the balance of said one-half league was decreed to the interveners named.

(22) Judgment in the case of W. L. Holman et al. v. Houston Oil Company of Texas, dated July 23, 1913. This judgment, being a judgment in the same cause as the foregoing judgment, decrees that the plaintiff, W. L. Holman take nothing as to his claim to the east half of the Hyden league, and that th<([ interveners and defendants go hence without day as to said plaintiffs. It was further ordered that the interveners take nothing by their suit against the defendant Houston Oil Company of Texas and Maryland Trust Company for the east half of the Nathaniel Hyden league, excepting 425 acres conveyed to Woldert, for which said inter-veners did not sue.

(23) Mandate from the Court of Civil Appeals, dated 5/29/1G, reciting that the above-styled cause had been appealed to said Court of Civil Appeals, and that same was affirmed.

(24) Agreement that the W. W. Holman named in the deed from W. W. Holman to L. I. Holman, supra, is the son and only heir of the W. W. Holman to whom John W. Holman conveyed by the foregoing deed.

(25) Agreement that E. A. Blount and J. E. Harrison were the duly appointed administrators of the estate of L. I. Holman.

(2-6) Agreement that W. L. Holman, the plaintiff in the above-styled suit, was the only child of W. W. Holman, Jr., who died in Denton county, and that the interveners in said suit were all the heirs of Lucius I. Holman.

The first assignment of error challenges the action of the lower court in not rendering the judgment for the defendant in this cause, because the undisputed evidence showed that both the plaintiff and defendant claimed their only chain of title through John W. Holman as common source,. and that John W. Holman conveyed to William W. Holman, through whom defendant claimed, in the year 1838, and that John W. Holman conveyed to J. G. Barksdale, through which deed the plaintiff claimed on December 26, 1837, so that the burden of proof was, under the statute of 1836, uiTon the plaintiff to show that the said William W¡ Holman was not an innocent purchaser for value against the prior deed to Barksdale, and the evidence on this point totally failed to raise the issue as to whether the said Holman was an innocent purchaser against said deed to Barksdale, and therefore the judgment should have been for the defendant.

This assignment is presented as a proposition. On the other hand, as a counter proposition, defendant in error presents and submits the following:

“The evidence on the issue of notice to W. W. Holman of the deed to Barksdale anteceding Ms own deed was not only sufficient to raise the issue of notice, but ample and convincing under the most stringent rules of evidence to satisfy a court or jury that said W. W. Holman knew of said deed, and did not claim the land adverse to his brother-in-law, J. G. Barksdale, not only that he knew and recognized Barksdale’s right, but that after him his son, W. W., so recognized it, and after his nephew, D. I. Holman, who lived with his uncle, W. W. Holman, also recognized it.”

With reference to the testimony we shall be compelled to go somewhat into the same, and consider it for the purpose of taking in® to consideration the testimony and the necessary inferences and conclusions therefrom.

The deed from John W. Holman to J. G. Barksdale, executed March 26, 1837, was witnessed by Sanford Holman and James Ellison, and, as shown by the witnesses Dick Holman and T. W. Blount, Sanford Holman was a brother of W. W. Holman, Sr.,, and brother-in-law to Barksdale, and James Ellison was close neighbor and lessor of land of W. W. Holman at the time, and that the same Sanford Holman, on February 8, 1838, ten months after the execution of the Barks-dale deed, also witnessed the deed from John W. Holman to W. W. Holman, his brother.

There is an admission that in 1837 the records of San Augustine county showed that J.W. Holman owned more than 1,000 acres on the east half of the Hyden league, and owned no other land in the county except on the east half of the said Hyden league. The relationship of parties involved in 1837 and 1838: John W. Holman being brother-in-law to Barksdale, the grantee in the deed, and to W. W. Holman, and said W. W. Holman being a man of large property. The receipt of J. C. Aiken, another brother-in-law of'the. Holmans, in 1858 given to J. G. Barksdale, is as follows:

“Received of Dr. J. G. Barksdale payment in full of all accounts by settlement up to this date., including $41.00 paid Holman at San Augustine November 1, 1858, as per receipt rendered by Holman for survey and tax this February 18, 1859. J. C. Aiken.”

It was shown that the paper was written wholly in the handwriting of John C. Aiken, acknowledging receipt from J. G. Barksdale of certain moneys, and signed with the genuine signature of John G. Aiken for money paid by said Join O. Aiken for taxes and survey of land; that the paper was found among the valuable papers of J. G. Barksdale. It is shown also that for many years previous to his death, about 1873, W. W. Holman, Sr., rendered for taxes on the Hyden league 1,810 acres for the consecutive years from 1858 up to and including 1872; that W. W. Holman, Jr., was only heir of his father, and in 1874 executed to L. I. Holman, his cousin, a deed conveying 810 acres of land on the Hy-den survey, with this very suggestive language:

“The said 810 acres being the interest owned by my father in said league of land, as will appear by reference to the records of real estate for the county aforesaid.”

It is further shown that L. I. Holman was one of the executors of the will of W. W. Holman, Jr., who died in 1878, and rendered an inventory of the property of his estate, and did not inventory any land on the Hyden survey, though many tracts worth $46,000 were inventoried.. It was further shown that L. I. Holman, who accepted the deed from W. W. Holman, Jr., describing the 810 acres as the interest of W. W. Holman, Sr., in the Hyden league, and who, two years later, as executor of the estate of W. W., Jr., failed to inventory any land on the said league as belonging to said estate, was a nephew of W. W. Holman, Sr., a bachelor, and lived in the same house with his uncle, W. W. Holman, from 1865 to the time of his uncle’s death, about 1873. The assertion of ownership by W. W. Holman’s sister and her husband, J. G. Barksdale, in 1874, while W. W. Holman and L. I. Holman were both living, by having the deed proven up and recorded, and conveying in 1874 700 acres of land to W. H. Lane, and 200 acres off the north end of the 1,000 acres to Martin L. Smith, and the nonassertion of ownership by any of the Holmans until Mrs. Drain, executrix of the estate of W. W. Holman, Jr., in 1881 makes a deed to Norsworthy. The deed from John W. Holman to Barks-dale was duly recorded in 1874, before the deed to Norsworthy made in 1881, and neither Norsworthy nor any owners under him could be innocent purchasers, as they all had full constructive notice of the said Barksdale deed, by reason of said record. It is admitted that under the law in our state the burden of proof is on the plaintiff in this cause to show that W. W. Holman had notice of the Barksdale deed when John W. Holman conveyed to him.

In the case of Houston Oil Co. of Texas v. Holman, 152 S. W. 885, this issue seems to have been passed on without many of the supporting facts that were brought out in the trial of this case. As to the measure of proof and probative effect, it is held in Underwood v. Security Life Co. (Sup.) 194 S. W. 587, that:

“If, discarding all adverse evidence and giving credit, to all evidence favorable to the plaintiff, and indulging in every legitimate conclusion favorable to. the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff,” then it should be submitted to a jury, and there would be evidence to support their verdict.

The same rule has been announced in Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696, and in Downs v. Stevenson, 56 Tex. Civ. App. 215, 119 S. W. 317, in which the court says:

“If there be any fact or circumstance tending to show that he is not a purchaser in good faith, the question is one of fact for the jury, and cannot be assumed by the court.”

In Cotton v. Cooper, 160 S. W. 601, the court said: ,

"Direct evidence is not required by law, and juries are allowed to indulge all reasonable inference from the facts revealed to them by the evidence, or which unbiased and rational minds can properly deduce from the facts adduced before them.”

As before stated, this case was tried by the court without a jury, and the same rules apply. All the original parties were dead. The Holmans and Barksdales were brothers and brothers-in-law, and it seems to be, from the testimony, that they were men of means and intimate, as brothers are usually, and that Ellison was W. W. Holman’s close friend and near neighbor, living on Holman’s land, and that this man Ellison and Sanford Holman witnessed the Barksdale deed from W. W. Holman, and that ten months after the same b'rother, Sanford Holman, witnessed the deed from John W. Holman to W. W. Holman, conveying the whole half league. The transaction was the sale of the only tract of land owned by John W. Holman in San Augustine county, as admitted by this record, and as this was the only tract owned by him, and hence as the deed to Barksdale, witnessed by Sanford Holman, was the only deed for land in San Augustine county up to that time ever executed by John W. Holman, it is probable that Sanford Holman, the brother of W. W. Holman, knew and informed his brother. After this, from the evidence of W. H. Lane, it appears that in 1858 another brother-in-law of W. W. Holman visited San Augustine county, Tex., ahd while there paid W. W. Holman for Barksdale $41 for taxes and surveying. This can only mean that W. W. Holman had paid taxes and surveying fees for his brother-in-law, Barks-dale, and there is not a suggestion- that Barksdale owned any other property in Texas than the. land in controversy, and the conclusion cannot be escaped that the refund to W. W. Holman was for taxes on this land, the whole 2,214 acres of which he was rendering at the time, as shown by the tax rendition statement in evidence.

Again, from and including the year 1858, for every year to and including 1872, W. W. Holman rendered for taxes 1,810 acres of this Hyden survey, and this up to his death, which fact alone is not suggestive, but following this W. W, Holman, Jr., his son and only heir, conveys in 1874 to L. I. Holman, a nephew of W. W. Holman, Sr., who had lived with him from 1805 until his death, just 810 acres of the Hyden survey, and describes said 810 acres as the interest owned by his father in said Hyden league, and L. I. Holman, who must have been familiar with his uncle’s affairs, accepts such deed with such recitation, and later, in 1870, as executor of estate of W. W. Holman, Jr., inventories thousands of acres of lands, but not one acre on the Hyden. W. W. Holman, Jr., and L. I. Holman evidently fully understood that W. W. Holman never claimed or owned the 100 acres of land sold by John W. Holman to Barksdale, but as long as they lived recognized that 1,000 acres belonged to Barksdale and his sister, Aunt Polly' Ann Barksdale, who in 1874 wrote the following letter:

“Shelbyville, March 13th, 1874.
“Leonidas Cartwright — Dear Nephew: I received a letter from you some time ago, but X have been waiting- to got my deed ready for registration before answering. I feel under many obligations to you for your kindness and williness you manifest to be trouble with my business, for X am so situated that I am under the necessity of calling on some one, and can therefore more cheerfully ask you to do me the favor of having the inc-losed deed registered and returned to me, and also if possible to sell the land for me. When Mr. Thomas was hero several years ago, he said that he knew the land and that it was a very rich and valuable tract of land. If so it is possible that you could find a purchaser or it may be that you or some of my nephews who are trading in lands would be willing to buy it at reasonable figures. If you can find a purchaser please let me know at what price and to whom to have the deed made out. xour uncle will make a deed as you may direct signed, acknowledged, and certified ready for registration and forwared to you or he will send you a power of attorney, as you may think best. Please do the best you can for me, for unless we can realize the money from some sorse we will be compelled to make a sacrifice in selling our home. In fact our home is now adve-tised for sale, owing to our embarrassments growing out of our inability to make the house meet our exponces, tax, etc., and the doctor’s ill health, which has rendered Mm unable to do any business since the war. But property here is so low now that we cannot sell it for much more than one half its real value, and not one half what it would have brought before the war. However, could we realize some money upon the Texas land, it would enable us to hold for a better price on our house. After the deed has been registered please return it. All are well.
“Xour aunt, P. A. Barksdale.
“P. S. — Let mo know what it cost to have the deed registered and I will remit the money. Please answer this letter as soon as you receive it, so we may know it reached you safely.
“P. A. B.”

In the case of Holman v. Houston Oil Co., 152 S. W. 888, the following language is used:

“Neither John W. Holman, W. W. Holman, Sr., nor W. W. Holman, Jr., ever at any time had or claimed to have title to any land on the west half of the Nathaniel Hyden league. The interveners are the sole heirs at law of Lucius I. Holman, who died intestate. * * * It is further a most significant circumstance that, when the widow and executrix of W. W. Holman, Jr., came to sell and convey to Nors-worthy what she supposed was the land owned by the estate of her deceased husband in the east half of the Hyden league, she excepts from such conveyance not only the 810 acres conveyed by her husband to Lucius I. Holman, but also a ‘tract conveyed to J. G. Woldert by Col. W. W. Holman in his lifetime on the 7 th of December, A. D. 1853, out of the northwest (evidently a clerical error and intended for northeast) corner of the league. See Book I, p. 61, Records of Real Estate of San Augustine, Texas.’ The evidence shows that the deed from W. W. Holman, Sr., to Woldert dated December 7, 1853, and proven for record December 28, 1853, was recorded in Book I, pp. 60, 61, Deed Records of San Augustine County, showing conclusively, if anything more were needed than the face of the three deeds to show this fact, that the executrix of W. W. Holman, Jr., gave the same effect to these deeds; that is, that the last of the two deeds to be delivered was that from Holman to Woldert, thus placing the title to this 425 acres in Woldert, who in 1881 conveyed the same to Norsworthy, followed by consecutive deeds down to appellant, Houston Oil Company. It appears that no other claim was ever asserted until the filing of this suit in 1904. Under this construction of these deeds the title to the 425 acres is in the Houston Cil Company beyond question, and it must be so declared.
“The second question presented by the appeal arises upon the construction of the deed from W. W. Holman, Jr., to Lucius I. Holman. The language of the deed, describing the land conveyed, is as follows: ‘Eight hundred and ten acres of land, part of the Nathaniel Hyden league, situated in the county of San Augustine and state aforesaid, and about twenty miles south of the town of San Augustine; the same to be an undivided interest in the said Nathaniel Hyden league, and the said eight hundred and ten acres of land being the interest owned by my father in the said league of land, as will appear by reference to the record of real estate for the county of San Augustine and state aforesaid.’ There is no ambiguity in this description upon the face of the deed, no inconsistency or conflict between the description as 810 acres undivided in the league, and the further description of it as the interest owned by^the father of the grantor in the league.
“We have shown that Col. Holman had conveyed the 425 acres in the northeast corner. A deed was offered in evidence by the Houston Oil Company, and admitted, not for the purpose of showing title, but in explanation of Holman’s intention in the deed to Lucius I. Holman, from John W. Holman, father of W. W. Holman, Sr., to J. G. Barksdale, dated in 1837, and recorded in 1874, after the execution of the deed to Lucius I. Holman, and which conveyed 1,000 acres of land by the following description : ‘Lying and being in the county of San Augustine, and containing one thousand acres. The said land lies between Ayish bayou and the River Angelina, in the forks of said streams, in Zavala colony, about 10 or 12 miles from the town of Jackson. The said land lies on the west half of the league of land obtained from the government by the citizen Nathaniel Hyden from the legal commissioner as a colonist, which may be seen by reference to the records at Nacogdoches.’
“It -does not clearly appear that this land was a part of the east half of the Hyden league, but there appears to be a strong probability that the particular description, when applied to the ground, would show that it was. It appears further that it was not on record when the deed to Lucius I. Holman was recorded. But there is at least a probability that W. W. Holman knew of the existence of this deed when he made the deed to Lucius I. Holman. The 1,000 acres would be an undivided interest, and, if this deed be considered as conveying an undivided interest in the east half of the Hyden league then owned by John W. Holman, it would have left, after deducting also the 425 acres, 789 acres undivided as the interest of W. W. Holman, Jr., in the east half of the league, if it contained no more than its proper quantity of land. Then the question would arise: If W. W. Holman supposed that his interest was no more than 810 acres undivided, was it his intention to convey no more than that quantity, or did he intend, at all events, to convey all he owned, without regard to quantity? If the latter, why should he have used at all the terms ‘810 acres, being an undivided interest in the Nathaniel Hyden league’? There is another circumstance which throws some light upon W. W. Holman’s intention and the understanding of Lucius I. Holman as to the land conveyed. In 1881, seven years after the execution of the deed to Lucius I. Holman, his administrators made application to the probate court to sell, and were ordered to sell, and did sell and convey to W. H. Ford, land which it is entirely clear was what they understood as the land conveyed by W. W. Holman to said Lucius I. Holman by the deed under discussion. In their deed the land is described as follows-: ‘810 acres of land, part of the Nathaniel Hyden league, situated on the west side of Ayish bayou about 30 miles south of the town of San Augustine, and the said 810 acres hereby conveyed being an undivided interest in and to a tract of 1,864 acres of the said Hyden survey, said 1,864-acre tract being all of the east half of the said Hyden league, except a tract 1,400 varas square in the northeast corner of said league, which was conveyed by W. W. Holman to J. G. Woldert.’
“It would seem from this deed that the league contained more than 4,428 acres, and that this was known to the administrators. But it seems reasonably clear, at least it.is a fair presumption, that the personal representatives of Lucius I. Holman, two years after his death, and seven years after the execution of the deed to him by W. W. Holman, construed that deed to convoy only an undivided interest of 810 acres. This certainly was a circumstance to be considered in arriving at the intention of W. W. Holman, and of Lucius I. Holman as well. On the other hand is the circumstance that the executors of W. W. Holman in making an inventory of the property of his estate did not list any land in the Hyden league, evidently supposing that the estate owned none. How far this should be accounted for by the Barksdale deed was for the jury to determine.
“Without paying much attention to the (often finespun) distinction between a general and a particular description of the land conveyed in a deed, our conclusion is that the court erred in holding as a matter of law, and so instructing the jury, that the deed from W. W. Holman, Jr., to Lucius I. Holman, conveyed the entire half league, or any more than an undivided interest of 810 acres.”

To us it appears, not surmise or suspicion, but a strong inference amounting to a. fact, that W. W. Holman knew of and recognized the claims of Aunt Polly Ann Barksdale and her husband to this 1,000 acres. It will not be denied that while W. W. Holman and L. I. Holman were alive and cognizant of the facts, Mrs. Barksdale, their aunt, had this deed recorded, and sold 700 acres to this defendant in error, and 200 acres to Smith, as shown, and not a syllable of contention was made by these nephews against her assertion and recorded claim. To our mind, viewing this record as a whole,.the inferences and conclusions from the testimony which was received by the lower court are conclusive that the court’s action was correct, and therefore the assignment is overruled. Underwood v. Security Life Co., 194 S. W. 587; Wininger v. Railroad, 105 Tex. 56, 143 S. W. 1150; Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696; Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S. W. 317; Cotton v. Cooper, 160 S. W. 601; Kimball v. Houston Oil Co., 100 Tex. 343, 99 S. W. 852; Holman v. Houston Oil Co., 152 S. W. 885; Houston Oil Co. v. Kimball, 114 S. W. 670; Holland v. Nance, 102 Tex. 177, 114 S. W. 348.

The second assignment of error is practically a repetition of the first assignment, and the‘same is overruled.

The third and fourth assignments will be considered together, as follows:

(a) The court erred in admitting over the objections of defendant the deed from John W. Holman to J. G. Barksdale, said deed containing as its description the following:

“To a certain tract or parcel of land, with the appurtenances thereunto belonging or in any wise appertaining, situate, lying, and being in the county of San Augustine, and containing 1,000 acres. The said land lies between the Ayish bayou, and the River Angelina, in the forks of said stream, in Zavalla’s colony, about 10 or 12 miles from the town of Jackson. The said land lies on the west of a half of the league of land obtained from the government by the citizen Nathaniel Hyden from the legal commissioner, as a colonist, which may be seen by reference to the records at Nacogdoches. The field' notes of said land is returned with the following kinds of timber: Oak, ash, dogwood, gum, elm, etc., shoemake and myrtle, together with all and singular the hereditaments,” etc.

Said deed having been objected to for the reason that the description of same contained a patent ambiguity, in that it attempted to convey 1,000 acres on the west of a half of the league of land obtained from the government by Nathaniel Hyden from the legal commissioner, showing on the face of the deed that it might be either on one half or on the other, if on the league at all, and it does not appear from the description which half the 1,000 acres would be taken from, and because, giving the language its ordinary meaning, it would mean 1,000 acres to the west of the west half of the Nathaniel Hy-den league, and not be on the league at all,' and therefore would not affect the land in suit, and, further, because it attempts to convey, not an undivided interest of 1,000 acres, but shows plainly on its face that it attempted to convey some tract of 1,000 acres, and does not locate that tract, therefore, for these reasons, said deed was void for want of description, and, further, said deed, being incorrectly recorded, because not properly authenticated, was not admissible as an ancient instrument, and its execution should have been proved, and it was not proved, there being no proof of proper custody, no corroborating circumstances shown, no proof to show even that said deed was 36 years old; it being further requested that, if said objections should be overruled as going to the total exclusion of the evidence, the court should limit the effect of the evidence as a mere circumstance, if admissible, even that far to establish the existence of the original deed.

(b)The court erred in not rendering judgment for the defendant at the conclusion of the plaintiff’s evidence, as requested by de-fondant. The propositions submitted under these assignments are:

(a) The deed undertakes to convey a 1,000-acre tract bounded on the east by a half of the Hyden league, and same is therefore patently ambiguous, and, for that reason, void, in that it could have either the east or the west half of the league as its east boundary.

(b) The language of said deed means either that the 1,000-acre tract sought to be conveyed is bounded on the east by the west half of the Nathaniel Hyden league, or that it is bounded on the east by the east half of said league, and therefore conveys land not sued for by the plaintiff.

(c) If the language of said deed means that 1,000 acres is to be taken from the west part of the east half of said league, said deed is yet void for want of description, in that it fails to locate the 1,000-acre tract, and the evidence showed that there was no segregated 1,000-acre tract in the league.

(d) The deed through which plaintiff claimed described land bounded on the east either by the east half of the Nathaniel Hyden league, or by the west half thereof, and therefore did not convey the land sued for by him, and he therefore totally failed to show any title.

These assignments attack the sufficiency of the description of the land in the deed from John W. Holman to Barksdale, because it describes it as 1,000 acres beifig on the west of a half of the league of land, and alleges that such description is a patent ambiguity, and renders said deed void.

Defendant in error submits the counter proposition that this is a good and perfect .description of 1,000 acres off the west end of the east half of said Hyden league, as John W. Holman only owned the east half of the league, and nothing else on the Hyden, as shown by the record herein.

The language of the deed is plain that the 1,000 acres is on the west portion of a half of the Hyden league, and J. W. Holman only owned the east half of said league, as shown by the record herein, and hence said 1,000 acres must be on the west portion of the east half of the league.

In Houston Oil Co. v. Kimball, 114 S. W. 670, the court uses the following language:

“There was, so far as the evidence shows, no other land on the west bank of the Noches in that colony, or elsewhere, that Nelson owned or claimed.”

In the case of Waterhouse v. Gallup, 178 S. W. 776, the following language is used:

“When a deed or contract is reasonably susceptible of a construction which would make it valid and binding, that construction should be given it rather than one which would render it void.”

See Sowers v. Peterson, 59 Tex. 220; Waters v. Spofford, 58 Tex. 122.

The deed to Barksdale conveys 1,000 acres of land off the west end of the east half of the Hyden league. There was no purchaser of this land from or under W. W. Holman’s deed to the whole east half until Mrs: Drain, executrix, conveyed to Norsworthy in 1881. The Barksdale deed was recorded in 1874, and every purchaser took his title with constructive notice of said deed and record. Purchasers are only charged by construction with notice of the facts exhibited by the record, and not with such as might have been ascertained by such inquiries as an examination of the record might have induced a prudent man to make, and, while it is a conclusion of law which cannot be disputed that subsequent purchasers and creditors are chargeable with notice of all the facts shown or exhibited by the record, it has never been held that they are bound or affected by a record which does not give notice of a valid conveyance of the property in question, but merely gives information which, if in fact communicated to such creditor or purchaser, might have been reasonably sufficient to put him upon inquiry, though, had such inquiry been made, the existence of a prior incumbrance not properly recorded might have been ascertained. Taylor v. Harrison, 47 Tex. 457, 26 Am. Rep. 804; Daughlin v. Tips, 8 Tex. Civ. App. 649, 28 S. W. 551.

It is also the well-known principle that every purchaser of land is chargeable with all that the real estate records show in the chain of title under which he claims, even all recitations therein.

The record shows that John W. Holman owned the east half of the Hyden league. These purchasers, under the law, were compelled to know what he had done with that land, as shown by the record, and they thus legally knew that he had conveyed 1,000 acres on the west end of same to Barksdale, as it is admitted that he only owned land on the east half of said league.

We have arrived at the conclusion that there was no ambiguity in the deed, and the assignments must be overruled.

The fifth assignment is as follows:

“The court erred in not rendering judgment for the defendant, because, even if said deed to Barksdale and the subsequent deeds in that chain of title were sufficiently authenticated to be properly recorded, yet the description in said deed to Barksdale was so indefinite and misleading as not to convey constructive notice, and not such as to prevent said defendant and its vendors from being innocent purchasers; the evidence having shown conclusively that they paid value, and had no notice of said prior deed to Barksdale.”

From what we have said heretofore it is apparent that the court does not consider that this assignment has merit, and therefore it is overruled.

The sixth assignment is as follows:

“The court erred in refusing to sustain the objection of defendant to the introduction by plaintiff of the receipt signed by J. C. Aiken, dated February 18, 1859, said receipt reading: ‘Received of J. G. Barksdale payment in full of all accounts by settlement up to this date, including $41.00 paid Holman at San Augustine, November 1, 1858, as per receipt rendered by Holman, this February 18, 1859.’ "Which was objected to on the ground that the receipt did not show what land the survey was made on, or what land the taxes were paid on, and was therefore irrelevant and immaterial, and, if con- i strued as stating that it was for the land in controversy, such statement being hearsay, the witness having shown by his testimony that he did not know such facts.”

This opinion has reached such length that, without going into detail as to this action of the court with reference to the Aiken receipt, it is our opinion that the receipt was executed more than 50 years ago by Aiken; that the execution and custody of it we're fully proven; and that, if any objection could be urged, it would be only to its weight as evidence, and not to its admissibility. Howard v. Russell, 75 Tex. 177, 12 S. W. 525; Wiener v. Zweib, 128 S. W. 704; Arbendaiz v. Stillman, 67 Tex. 458, 3 S. W. 678. The. assignment is therefore overruled.

The seventh assignment is as follows:

“The court erred in rendering judgment in favor of defendant for all the land in controversy except whatever might be equitable and just to adjudge to the plaintiff after adjudging to the defendant the title to an undivided 810 acres by reason of the innocent purchase of Lucius I. Holman, if the deed to him be construed as conveying only 810 acres, and after adjudging to defendant the title to the 425-acre tract conveyed by W. W. Holman to Woldert, which tract was subsequently acquired by defendant, because, under the circumstances of this case, in view of the long and steady claim and asserting of ownership by plaintiff and its vendors, and in view of the evidence as to payment of valuable consideration, especially as to the 810-acre tract which was purchased by Lucius I. Holman before the record of the deed from Holman to Barksdale, which recites a valuable consideration, and which, in consideration with the other circumstances, was sufficient to prove the payment of the valuable consideration, and to require the finding that such purchase was made without notice of the. adverse claim of title, and the circumstances are also sufficient to require the finding that the prior vendors in defendant’s chain of title, who are now dead, purchased the 425-acre tract without notice of the adverse claim, and to show that the same was purchased for a valuable consideration, and the evidence of plaintiff was insufficient to show that any part of the 700 acres adjudged to him or of the 1,000-acre tract out of which it was adjudged would remain unappropriated after the allotment to defendant of the undivided 810 acres by virtue of the innocent purchase of Lucius I. Holman, and after the allotment to it of the 425-acre tract, and the judgment, if it should have been in plaintiff’s favor to any extent, should have only adjudged ‘him the right to the 700 acres described in his deed, if in the allotment to defendant of the. 810 acres undivided interest and the 425 acres specific interest did not appropriate the said land adjudged to the plaintiff.”

As heretofore stated, the length of this opinion has assumed such proportions that we do not deem it advisable to go into this matter at length. It seems from the testimony in the case that Lane’s 700 acres in no way interferes with the 810 acres through L. I. Holman, or the 425 acres through Wol-dert, and the description in each of the deeds shows there is no conflict. Therefore the assignments are overruled.

We believe that the trial of the case in the lower court was correctly had; that plaintiff in error’s rights were guarded in every respect; that the deed to Barksdale is sufficient between the parties to it and their privies to convey the land which the court in this case construed it to convey; that it was sufficiently authenticated for record; that its description is sufficient; and that from this record the cause should be in all things affirmed.

It is so ordered.
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author: KING, J.

text:
    MACKAY TELEGRAPH & CABLE CO. v. KELLY.
    (No. 273.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 13, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Master and Servant <&wkey;264(4) — Injuries " to Servant — Evidence—Admissibility.
    In action for injuries to lineman’s assistant when a motor car was derailed, evidence of prior derailments from the same cause was admissible, even in the absence of allegations thereof, to show the master’s knowledge of the defects in the car.
    2.. Arpead and Error <&wkey;263 (1) — Scope — Preservation oe Exceptions.
    Where the master, in action for injuries to servant when motor car was derailed, failed to except to charge on account of its failure to limit testimony as to prior derailments for purpose of showing knowledge of defects, and" also failed to submit a special charge on the subject, he could not complain; the testimony being admissible for some purpose.
    3. Master and Servant &wkey;>276 (3) — Injuries to Servant — Evidence.
    Evidence held to sustain verdict for servant, injured when motor car on which he was riding was derailed, owing to defective condition of frame.
    4. Master and Servant <&wkey;270(10) — Injuries to Servant — Sake Appliances — Evi-den ge — Admissibility.
    Though witness had not seen motor car for two months prior to the accident when it was derailed and plaintiff was injured, assignment of error to his testimony as to condition of the car goes to the weight and not the admissibility of his testimony.
    5. Trial &wkey;>133 (2) — Argument oe Counsel —Cure oe Errors.
    While it was improper for plaintiff’s counsel to state that defendant’s witness came from Mississippi to testify and made merchandise of his oath, the error was cured by express instruction by the trial court to disregard the language.
    6. Trial &wkey;>125 (5) — Argument oe Counsel— Cure oe Errors.
    In servant’s action for injuries, where defendant introduced record of servant’s eonvietion for theft in another state, argument of plaintiff's counsel that the conviction should not be held against a boy, who was motherless, uneducated, penniless, and wayward, and had been wrongfully convicted, was not improper.
    7. Damages <&wkey;131(l) — Excessive Damages.
    Verdict of $3,000 in favor of servant, thrown from motor car, rendered unconscious, cut and bruised about the head and body, with his left leg broken in two places, below the knee and above the ankle, who lay on his back for 4% months in the hospital, suffering great pain and mental anguish, and walked on crutches for 1% months after leaving the hospital, was not excessive.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Action by George Kelly against the Mac-kay Telegraph & Cable Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, .Streetman, Burns & Logue, of Houston, and Oliver J. Todd- and W. G. Reeves, both of Beaumont, for appellant. C. W. Howth and F. G. Vaughn, both of Beaumont, for appellee.
   KING, J.

This suit was filed by and in behalf of appellee to recover damages of appellant upon the alleged ground that ap-pellee was injured while in the employment of appellant, due to its negligence. It is alleged that appellee was employed by one of appellant’s linemen to assist in some work, and was taken upon a small motorcar operated on the Kansas City Southern Railway Company’s track; the injuries alleged being occasioned by the derailment of said car. The cause was tried in the Sixtieth district court of Jefferson county, and was submitted to a jury by special issues, the jury answering all questions submitted favorable to appellee, and upon their verdict, in response to the issues propounded, and on motion of appellee, the court entered a judgment for plaintiff in the sum of $3,000, the amount found by the jury. From this judgment, the appellant has perfected its appeal to this court.

The appellant complains, under appropriate assignments of error, of the action of the trial court in overruling its special exceptions to portions of paragraphs 6 and 10 of appellee’s petition, wherein it is pleaded that the motor car in question had been derailed on several separate times before the day on which appellee was injured by the derailment of the motor car, insisting that the allegations complained of were irrelevant to any issue in the case, and prejudicial, because there are no averments indicating the cause of any prior derailments, or that any such cause previously operating was a proximate cause of the derailment in question, and claiming that specific incidents of prior accidents are not competent as evidence of a subsequent defective condition, in the absence of affirmative and specific allegations that the car remained and was in the same condition at the time of the accident in question, and had not been repaired, and also because the averments as to prior derailments are too remote to admit evidence thereunder. Appellant also coin-plains of the action of the trial court in admitting testimony as to prior derailments of the motor car in question, in keeping with its special exceptions above mentioned.

Appellant excepted specially only to paragraphs 6 and 10 of plaintiff’s petition, while practically the same allegations are contained in paragraphs 7, 8, and 9 of appellee’s petition. We are of opinion mat, taking the entire petition as a whole, it is sufficiently specific, even if it were necessary to plead with reference to prior derailments. In our opinion, the evidence of prior derailments of the motor car from the same cause was admissible upon the trial of the case, even in the absence of any allegations as to such prior derailments, for the purpose of fastening upon appellant knowledge of the defective condition of the car.

It was alleged in appellee’s petition that the motor ear, upon which he was riding at the time of his injury, was defective, in that the frame of the car was sprung, that the drivewheel was cupped, that the center bolt on the left front spindle was a throe-inch bolt, and should have been a five-inch bolt, and that, on account of the frame being sprung, it was impossible to set the right rear wheel true, that the car was in danger of being derailed at any speed, and that it had theretofore been derailed on several occasions, all of which facts were unknown to the appellee, but known to the appellant, or could and would have been known by appellant, had it exercised ordinary care.

Paragraph 7 alleges knowledge on the part of appellant and its authorized agents of some defective condition of the car which caused it to jump the track on prior occasions. Paragraph 8 alleges that appellant knew that it was dangerous.to operate said car, on account of the fact that it was likely to run off and become derailed on account of the defective condition of said car. Paragraph 9 alleges that said car had before, and within a few months before, on one or more occasions, derailed, and injured persons riding thereon, on account of the frame of said car being sprung, and on account of the other defects, all of which was known to the defendant, but unknown to the plaintiff.

The appellant failed to except to the court’s* charge on account of its failure to limit the purpose of the testimony with reference to prior derailments to show the knowledge of the defective condition of the car, and it failed to submit a special charge to that effect. In the absence of this, appellant cannot be heard to complain; the testimony being admissible for some purpose— that is, of showing knowledge of the defects on the part of appellant. On the admissibility of testimony as to the prior derailments of the ear, see Shearman & Kedfield on Negligence, § 60 B; Labatt on Master and Servant, vol. 4 (2d Ed.) 4824; Railway Co. v. Burnett, 42 S. W. 314; Railway Co. v. Evansich, 63 Tex. 56. Cyc. has to say upon this subject:

“In an action by a servant for personal injury, evidence is admissible to show the condition of the master’s machinery, appliances, or places for work previous to the injury, where such condition is shown or may be presumed to have continued up to the time of the accident.”

Appellant assigns as error the refusal of the trial court to grant its request for a peremptory instruction. We think the evidence is ample to sustain the verdict. It is undisputed that appellee was ¡riding the motor car, and that it was derailed, and that he suffered serious bodily injury. The accident is alleged to have happened about the 1st of September, 1015.

Joseph R-uple testified that he was not present at the time the motor car was wrecked, but that he knew the car, for the reason that he had worked on the car during the summer and fall of 1915; that ho was employed at that time by the Maekay Telegraph & Cable Company’s lineman, Mr. Plummer, to overhaul the car; that ho could not state specifically the condition of the car at the time appellee was injured, as it had been a month or two since he had worked on it; that his inspection of the car revealed the fact that the frame of the ear was sprung, that the front drivewheel was cupped, the center bolt on the left front spindle was a three-inch bolt, and should have been a five-inch, and that, on account of the frame being sprung, it was impossible to set the right rear wheel true, and that the car was in danger of being derailed at any speed; that when a car frame is sprung, it is impossible to set the car true until the frame is repressed; that he had worked on the car at various times during the summer, and that it had wrecked twiee with him, on account of the frame being sprung, and the right front wheel being cupped; that the lineman of the Maekay Telegraph Company, Mr. Plummer, knew of the condition of the car, and that he had told the witness that the company had instructed him to employ the witness to work on'the car; that this car had, to his personal knowledge, been sent to Beaumont twice for repairs previous to the time appellee was injured ; that the ¡company’s lineman, Mr. Plummer, was with the witness at all times when he was at work on the car; that- said lineman was with the witness both times when the car wrecked; that, the frame of the car being sprung, it was impossible for it to be made safe to run. On cross-examination, he testified that during the months of July and August, 1915, he was employed at various times by the appellant on this motor car, hut that he had not seen the car during the month of September.

D. B. Plummer testified that he was an electrician, and lineman by trade, and that he worked for the appellant from about the 1st of August, 1914, until the 1st of August, 1915; that he knew the motor car on which George Kelly was injured, and that it was in very bad condition; that the main trouble with the car was that the frame was sprung, so that it could not be lined up and run on the track safely, and it had a cracked axle; that the Maekay Telegraph Company had no shop at Beaumont at all, except the car house, in which they had a few small tools and materials for work, such as wrenches, screwdrivers, etc.; that about the 1st of February, 1915, he went from De Quincy to Eunice on the car; that the car did not run right; that when he would speed the car from five to ten miles an hour the wheels would jump off the track, and he inspected the car and found a big bend in it on the inside frame, causing the frame to bulge in; that the appellant did not have any vise or press of any kind or character, either at Beaumont or De Quincy, which would have enabled it to bring pressure enough to hear the whole length of the frame to straighten it out, and that it could not be straightened by muscular power. He further testified to a number of times that he had trouble with the ear, on account of the sprung frame; that he finally declined to use the car, unless it was put in good condition, and it was not put in good condition, and he did not use it any more; and that he was relieved by appellant shortly after he declined to use the car further. He testified that he made a report to the company of the defects in the car that he testified about. It was show?i by the testimony upon the part of appellee that the car had such a defect that it could not be repaired with the facilities of the appellant, either at Beaumont or De Quincy; that the car had not been sent back to the factory at any time after the defects were reported to the company by the witness Plummer.

It is true that the appellant introduced testimony of the witness Brown, and perhaps others, to the effect that, between the time Mr. Plummer was relieved and the car was turned over to Mr. Coward, the same had been repaired in the shops at Beaumont, and that it was lined up all right, and the frame on the car was not bent, and that it was in good condition for operation when it was turned over to Mr. Coward, and that there were no defects then. The jury was authorized, however, to accept appellee’s version to the effect, not only that the car was defective, as testified to by Ruple, Plummer, and others, but also that on account of the lack of facilities at Beaumont, as testified to, the defects in the ear, in fact, had not been removed, as testified to by appellant’s witness Brown.

Appellant claimed upon the trial that the ear was not in fact derailed by reason of any defect in its frame, but on account of striking a small pig. The evidence is conflicting upon this point. The witness Mrs. Collins testified that she saw the accident; that she watched the car awhile, and she saw it begin to jump; that she was looking directly at it at the time it was wrecked; that she did not see any pig there, and that there was nothing to prevent her from seeing it, as it was open in front of her house; that she saw some hogs cross over the track some distance ahead of the wreck — she estimated at about 100 yards or further. This testimony, which was corroborated to some extent by the witnesses Fairchilds and Waldock, is sufficient for the jury to conclude that the car was not wrecked by striking the pig.

It was also contended by appellant that ap-pellee was, in fact, not employed by its lineman. The evidence upon this point is conflicting, but was ample for the jury to predicate its answer iq favor of appellee; that he, in fact, was employed by the authorized agent of the company on the day in question and was an employé at the time of his injury.

Appellant complains of the trial court in admitting evidence of Joseph Ruple relating to the condition of the car, because the witness had answered a prior interrogatory that he had not seen the motor car for about two months prior to the accident. We think this assignment is more to the weight of the testimony than to its admissibility. The witness Ruple testified as to the defects of the ear up to within about one month of the accident, and that it was impossible for the defects to have been cured, except at the factory. We think the testimony was competent.

Appellant complains of the action of the trial court in not granting a new trial, on account of the improper and prejudicial argument of plaintiff’s counsel, F. G. Vaughan; the language being that the witness D. F. Coward, who testified for appellant, came from Mississippi 'to testify in this case, and made merchandise of his oath. We think the action of counsel in using this language improper, but the record shows that the trial court instructed the jury affirmatively not to consider the remarks in considering of their verdict. We are unwilling to reverse this case upon this act. We do not believe it is such inflammatory language as would probably affect the verdict of the jury, especially in view of its withdrawal by the trial court, and the further fact that it was language concerning a witness, and not directed towards the appellant.

There are several other assignments of error complaining of the remarks of Attorney C. W. Howth, in his closing argument to the jury, which appellant claims were improper and prejudicial.

The thirteenth assignment we overrule without comment.

The language complained of in the fourteenth assignment is as follows:

“Gentlemen, instead of holding that against the boy, that he was motherless and uneducated and penniless and wayward, and has been convicted, and the evidence shows wrongfully convicted. * * * ”

The language complained of in the fifteenth assignment is, “The young man said he didn’t take the pin,” referring to the record introduced in evidence by the defendant, showing that plaintiff had been convicted of felony theft in Louisiana. We do not think that this language was improper, in view of the fact that it was in answer to the claims of appellant that appellee had been convicted for theft, in Louisiana. The court, however, instructed the jury not to consider the language used. Furthermore, under the decision of the Supreme Court, the testimony as to his conviction for crime was inadmissible.

We overrule appellant’s assignment, wherein he claims that the verdict is grossly excessive, and indicates some improper motive on the jury’s part, instead of a fair and impartial consideration of the evidence. The evidence showing that appellee was thrown from a motor car and rendered unconscious, cut and bruised about the head and body, with his left leg broken in two places, below the knee and above the ankle, that he lay on his back for 4y2 months in a hospital, suffering great pain and mental anguish, and walked on crutches for about 1% months after leaving* the hospital, presents such a case wherein a verdict for $3,000 is not excessive.

Having concluded that there are no reversible errors in the record, the judgment is affirmed.
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text:
    INTERNATIONAL & G. N. RY. CO. v. LYON.
    (No. 763.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 13, 1917.
    Rehearing Stayed Pending Action of Supreme Court on Certified Question Jan. 24, 1918.)
    Courts <§=»247(11) — Amount in Controversy —Prayer.
    Where plaintiff sued in justice court for damages for negligent death on a certain date of a horse valued at $100, not asking for interest, the interest is not in controversy, so that the Court of Civil Appeals is without jurisdiction.
    • Appeal from Leon County Court; C. D. Craig, Judge.
    Suit by W. T. Lyon against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Dismissed.
    L. T. Dashiell, of Centerville, B. D. Dash-iell, of Jacksonville, Wilson, Dabney & King, of Houston, and S. N. Russell, of El Paso, for appellant. Wm. Watson, of Centerville, for appellee.
   HIGGINS, J.

Appellee, on August 7, 1915, filed suit in tlie justice court to recover the sum of $100, the value of a horse alleged to have been killed by one of appellant’s trains. Upon a trial de novo in the county court, judgment in his favor was rendered in the sum of $100. This judgment permits recovery of interest from its date. The railway company appeals. The pleadings of plaintiff are shown by the citation in the justice court. It is alleged that the horse was of the value of $100, and was killed November S, 1913, and that by its death plaintiff had been damaged in the sum of $100. He asked judgment for Ms damages, costs, and general relief. There was no prayer for the recovery of interest.

Appellee has filed a motion to dismiss the appeal upon the ground that neither, the judgment nor amount in controversy exceeds the sum of $100, exclusive of interest and costs. There can be no question that the judgment does not exceed that amount. As to whether the amount in controversy should be so considered there has been some confusion in the authorities, which to some slight extent has been cleared by the recent decision of the Supreme Court in Railway Co. v. Mathews (Sup.) 191 S. W. 559.

Appellant in support of the jurisdiction of this court over the appeal cites Railway Co. v. Albin, 185 S. W. 647, decided by this court, but we think the question presented is ruled by the Mathews Case and Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103. The pleadings aver that plaintiff had been damaged by the death of the horse in the sum of $100. He only asked judgment for such damages and general relief. That was the case made by the petition in the Rayzor Case, and it was held that it was not to be construed as seeking the recovery of interest as a part of, and to be included within, the amount of the judgment. As we construe ap-pellee’s pleading here, he was not seeking the recovery of interest as a part of, and to be included within, the amount of the judgment. In other words, he has omitted to sue for interest as was done in the Mathews Case, and that case makes clear the right of a litigant to omit to sue for an item which is due him and not thereby place such item in controversy, unless it is necessarily involved as a part of some other item of damage that has been placed in controversy. In that case, the plaintiff omitted to sue for his interest, and it was held that it was not to be considered as a part of the amount in controversy.

On the other hand, in the Albin Case, it was held that interest, to which the allegations of the petition showed the plaintiff to be legally entitled to recover as an item of his damages, was to be considered a part of the matter in controversy, notwithstanding recovéry thereof was not sought. Such holding is not in harmony with the later ruling of the Supreme Court in the Mathews Case as above set forth, and as to any conflict between the two holdings, the latter is controlling. The view of this court as set forth in the Albin Case cannot prevail against the superior authority of the Supreme Court. In obedience to this superior authority we hold that the amount in controversy does not exceed the sum of $100, and that the appeal should be dismissed. See, also, Strickland v. Duffie, 191 S. W. 622; Merchants, etc., v. Bank, 192 S. W. 1098.

Dismissed.

WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.
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