text:
    C. W. HAHL CO. v. GREGG REALTY CO.
    No. 9855.
    Court of Civil Appeals of Texas. Galveston.
    March 16, 1933.
    Rehearing Denied April 20, 1933.
    J. R. Hill, of Houston, for appellant.
    W. P. Neblett, of Houston, for appellee.
   GRAVES, Justice.

The appellee, Gregg Realty Company, sued J. D. Martin and C. W. Hahl Company, a corporation, setting forth that Martin had executed and delivered to the defendant C. W. Hahl Company his note for the sum of $380.63; that the Hahl Company, for a valuable consideration, sold, indorsed, assigned, and delivered the note to the appellee in due course and before its maturity; that demand had been made of both defendants to pay the same, and the defendant Hahl Company, in writing, had requested extensions of the note, which had been granted, likewise in writing. The note was secured by a deed of trust on 80 acres of land in Brazoria county. The appellee pleaded that J. D. Martin was a “straw man,” acting for the Hahl Company, and that as a matter of fact the latter had become primarily liable for the plaintiff’s debt, more especially by reason of its written requests for the extensions.

The defendant Hahl Company, in its answer, pleaded the four-year statute of limitation (Rev. St. 1925, art. 5527) against the cause of action set up by the plaintiff, and further answered that defendant J. D. Martin, the maker of the note, was the primary obligor. It also filed its cross-action against him for whatever amount might be adjudged against it, on which cross-action service had been issued by publication. The court appointed the Honorable Lawrence Du Mars, an attorney of Harris county, to represent J. D. Martin, but upon the announcements of ready for trial, the appellee dismissed as to J. D. Martin, and relied upon making proof that the defendant Hahl Company was in fact the principal obligor. The defendant Hahl Company adopted the same theory of the case, made no objection to Martin’s being thus let out, but in turn dismissed its cross-action against him.

After all of the evidence was adduced, the trial court found in favor of the appellee against the Hahl Company, from which judgment it duly excepted and has duly prosecuted this appeal.

No assignments of error, nor motion for rehearing, were made by the appellant, and no claim of fundamental error is set up in its brief; the only error complained of is that the trial court allowed the appellee to dismiss its cause of actions against Martin, the maker of the note.

The contention presented to this court is that the trial court erred in so permitting- the appellee to dismiss its alleged cause of action -against Martin, “there being no allegations in the appellee’s petition that said Martin resided beyond the limits of the State, or that he could not be reached by the ordinary process of law, or that his residence was unknown and could not be ascertained by the use of reasonable diligence, or that he was dead, or actually or notoriously insolvent”— R. S. arts. 1986, 1987 and 2088, being cited in support.

There is no merit in the presentment.’ Under the invoked statute, it is true that the rule in Texas — with certain exceptions — is that no judgment may be rendered against a party not primarily liable on a promissory note, unless judgment be also rendered against the principal obligor; but that is where no statutory excuse is pleaded that would dispense with that requirement. In this instance, however, such a valid reason for taking this ease out of the operation of that general principle was not only alleged but un-disputedly proved, in that it was charged and shown that Martin had never at any time been other than a straw man for the appellant, that is, its alter ego, and acting for its benefit, and that this relationship bad been subsequently expressly acknowledged in writing by the appellant, whereby it had requested and in like manner received at least two different extensions upon the note in its own behalf; in fact, in one of these it expressly advised the appellee that it had taken over the land involved from the original nominal obligor on the note, Martin, and in consequence it obligated itself directly in the two extensions referred to to pay the obligation; so that, under such authorities as R. S. arts. 1986, 1987, and the holding of this court in Schumacher Oil Works v. Keisler (Tex. Civ. App.) 31 S.W.(2d) 461, the note thereafter became — if it had not always been — the primary obligation of the appellant, regardless of its having been originally signed by Martin only as maker.

Furthermore, as our statement has indicated, this dismissal of appellee’s declared-upon cause of action against Martin was had before the trial began, and appellant not only at the time made no objection thereto, but further dismissed its own claim against him, and thereby joined in reducing the only issue before the court to one of whether or not Martin hnd bo°n t^e principal obligor upon the obligation as between the parties remaining in the suit; the adverse judgment to appellant can therefore only be interpreted' as a finding against appellant upon that question ; this alone settles the controversy against it.

Pursuant to these conclusions, the trial court’s judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: LATTIMORE, Justice.

license: Public Domain

text:
    SPENCE v. NATIONAL LIFE & ACCIDENT INS. CO.
    No. 12783.
    Court of Civil Appeals of Texas. Fort Worth.
    March 4, 1933.
    Rehearing Denied April 15, 1933.
    Charles T. Rowland, of Fort Worth, for appellant.
    Hampden Spiller and Ratcliff & Christian; all of Fort Worth, for appellee.
   LATTIMORE, Justice.

Appellee issued, on January 26, 1931, to Henry K. Spence, its policy of insurance upon his life, payable to appellant, conditioned upon insured being in sound health at the time of delivery of said policy and not having had cancer or disease of the kidney or chronic bronchitis. Insured died in August, 1931, after having been sick more than three months and opei’ated upon in connection therewith.

Upon suit on the policy, the appellee answered that each of the conditions upon which the policy was to become effective had not been fulfilled.

The case was submitted to a jury, which found that deceased was of unsound health at delivery of the policy and that he did not on said date have cancer or disease of the kidneys. The court thereupon entered judgment for appellant on February 26,1932, on the verdict, and thereafter, on April 1, 1932, at the same term, set aside that judgment and entered judgment for the appellee after motion and notice thereon for judgment notwithstanding the verdict.

We see no reason why the court may not within the time allowed for its control over its own judgment and upon proper procedure set aside a judgment upon a verdict and enter the judgment it should have entered in the first instance. Hume v. John B. Hood Camp (Tex. Civ. App.) 69 S. W. 643.

This brings us to the judgment entered notwithstanding the verdict.

Acts of the 42d Legislature, c. 77, p. 119 (Vernon's Ann. Civ. St. art. 2211 and note) provides:

“Section 1. That Article 2211, of the Revised Civil Statutes of the State of Texas of 1925 be and the same is hereby amended so as to read hereafter as follows:
“‘Article 2211. The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render Judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. Only one final judgment shall be rendered in any Cause except where it is otherwise specially provided by Law. Judgment may, in a proper ease, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors.
“Sec. 2. That all laws and parts of laws in •conflict herewith be and the same are hereby repealed.”

This act made two additions to our •court practice. Eirst, enlarged the judgment non obstante veredicto; and, second, empowered the court to disregard any special issue jury finding that has no support in the evidence. “Non obstante veredicto” has a •definite meaning. At common law a judgment non obstante veredicto was not allowed unless the facts alleged did not support the verdict. Sternberg v. First Nat. Bank of Camden (C. C. A.) 280 F. 863; City of Ft. Scott v. W. G. Eads Brokerage Co. (C. C. A.) 117 F. 51, cert. denied 187 U. S. 647, 23 S. Ct. 846, 47 L. Ed. 348; Board of Councilmen of City of Frankfort v. Deposit Bank (Ky.) 60 S. W. 19; Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141; Willoughby v. Willoughby, 60 Q. B. 722.

It seems equally well settled that at common law judgment non obstante veredicto did not lie in a ease where the pleadings were sufficient but the evidence insufficient to support the verdict. Cook v. Hale & Ward (D. C.) 210 F. 340; U. S. v. Gardner (C. C. A.) 133 F. 285; Stevenson v. Moore (Ky.) 118 S. W. 951; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823.

In this state article 1 makes the common law of England, so far as it is not inconsistent with the Constitution and laws of this state, the rule of decision, together with such Constitution and laws. What are our statutes?

The substance of article 2211, Rev. Statutes, was enacted in 1846, and under that statute it was well settled, since Houston & T. C. Ry. Co. v. Stryeharski, 92 Tex. 1, 37 S. W. 415, that the judgment must follow the verdict, and in Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S. W. 607, it is said that by virtue of this statute the trial court could not enter a judgment contrary to the verdict even though he should have directed a verdict instead of submitting the case to the jury. None the less, our prior decisions contain very clear statements that the conception in Texas or the judgment “non obstante veredicto” is identical with the common-law rule. Brown v. Rentfro, 57 Tex. 327. The class of cases in which that rule has been applied is “ * * * the court determines as a matter of law that the matter set up in defense constitutes no obstacle to a recovery.” And again, “where the evidence is not sufficient to sustain the verdict, the court has full power to remedy the wrong by granting a new trial.” Templeman v. Gibbs (Tex. Civ. App.) 25 S. W. 736, 737: “Such a motion will be entertained only by the plaintiff when the verdict of the jury is for the defendant upon facts that present no defense.” This ease is cited in U. S. v. Gardner (C. C. A.) 133 F. 285, 288, as exemplifying the common law. Scott v. Farmers’ & Merchants’ Nat. Bank (Tex. Civ. App.) 66 S. W. 485, holds: “If the verdict is not supported by testimony, can the dissatisfied party move the court to render judgment for him notwithstanding- the verdict? No.’-’ Since Henne & Meyer v. Moultrie, supra, a great many cases have been disposed of where the judgment was contrary to the verdict because the latter was on insufficient evidence, by the statement that judgment non obstante veredicto was not permissible in Texas.

Notwithstanding all of the decisions above cited and the statute, the rule has continued that, where the pleadings do not and cannot by any consistent and probable amendment thereto and where the evidence offered thereunder does not authorize a judgment favorable to such pleader, the court may render a judgment which is referred to by some of the authorities as non obstante vere-dicto. Vogel v. Allen, 118 Tex. 196, 13 S.W.(2d) 340, 341. This case was followed, and the limitations so set out in Ellis County v. McKay (Tex. Civ. App.) 56 S.W(2d) 310, but, though decided two yeax-s after the amendment to article 2211, R. S., it makes no mention of same, the date of the trial below is not given, and we are thus unable to say whether the amendment can be read into the opinion or not.

We have examined the evidence carefully. The appellant’s case consists wholly of the testimony of the beneficiary, wholly unlearned in medical matters, who says that the deceased appeared well and did his day’s work until he took to his bed with his last illness. Defendant produced the physician who* attended the deceased dxxring such illness. He testified that the deceased had an infection of the bladder, stricture of the urethra, urine fistula, which latter had been previously operated upon. The court pexrmitted him to testify that, from a report of an examination by some other persons not witnesses, he (the witness) concluded the deceased had cancer and syphilis. He testified that probably each of these existed in deceased on the date of the policy. An analysis of the doctor’s testimony shows that the diseases he found of his own knowledge the deceased had are not testified to be in the list of those named above in the conditions exacted in the policy. As to syphilis and cancer, the doctor plainly predicated his opinion on some hearsay testimony, and we therefore discard it.

Is deceased conclusively shown to be in bad health on January 26,1931? The doctor says he probably had on that date the disease he himself diagnosed. Apparently he was not certain of it himself as a medical matter. Prior operations therefor did not exclude the deceased from accepting the policy. The negative of illness in the past is difficult of positive proof sometimes. A person not suspecting himself to be diseased ordinarily does not consult a doctor to verify the blessing of good health. After his death the testimony must he made from such sources as the plaintiff produced.

We do not mean to hold contrary to Metropolitan Life Ins. Co. v. Betz (Tex. Civ. App.) 99 S. W. 1140, and similar cases cited, but do say that the evidence in this case is not of that conclusive nature that would justify us in approving a judgment for appellee contrary to the jury verdict.

Reversed and remanded.

On Motion for Rehearing.

Appellee has filed a forceful motion for a new trial which deserves and has had lengthy consideration by us.

The statute (chapter 77 [Vernon’s Ann. Civ. St. art. 2211]) supra, says that the trial judge “may” render judgment non obstante veredicto. Assuming that such power rests in the trial court, it is still discretionary on his part, subject to review for abuse, whether he will enter such judgment or whether the ends of justice will be conserved 'best by granting a new trial.

The trial coui*t who heard and saw the witnesses concluded that the verdict should not stand, and we accept his finding thereon. The judgment contrary to the verdict was not justifiable in our opinion.

The motion for rehearing is overruled.


author: CONNER, Chief Justice.

text:
    WILSON et al. v. BEARDEN et al.
    No. 12842.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1933.
    Rehearing Denied March 18, 1933.

      McFarlane & McFarlane, Marshall & King, and Fred T. Arnold, all of Graham, for appellants.
    Bouldin & Zivley and J. R. Creighton, all ■of Mineral Wells, for appellees.
   CONNER, Chief Justice.

Briefly stated, this suit originated in the county court of Young county, Tex., upon the application of the appellant Frank H. Wilson to he appointed permanent administrator of the estate of Annie E. Bearden, deceased. That court denied the application on the ground that there was no necessity therefor. An appeal was taken to the district court of Young county, and certain heirs and certain alleged debtors intervened, alleging debts and seeking the appointment of one of the heirs as the administrator. The district court, after a hearing, concluded that the courts of Young county were without authority in law to make the appointment, and entered judgment dismissing the case, and from that judgment an appeal has been duly prosecuted to this court.

The jurisdictional question is the sole one presented for our determination.

The facts show that A. L. Bearden in his lifetime owned 525 acres of land in Young and Archer counties. He lived in Young county on this land as his homestead for more than ten years before his death, which occurred in July, 1918. At the time of his death his wife, Annie Bearden, was living with him on said homestead and was of unsound mind. Appellant Frank H. Wilson was appointed as guardian of her person and estate in 1924, and was her acting guardian continuously until her death in March, 1932. After the death of A. Jj. Bearden, his daughter, Mrs. Zula Claiborne, came and lived in the homestead house and cared for her mother until she, Mrs. Claiborne, moved to Mineral Wells, Tex., about June 3, 1927. In arranging for Mrs. Claiborne to care for her mother, Frank H. Wilson told her that Annie Bearden would have to stay with her or he would have to place her in an asylum. Mrs. Claiborne agreed to care for her, and she was at all times herein stated paid varying sums for that care from the estate of Annie Bearden, which appears to have been large (of an approximate value of $100,000). In addition to the various sums paid Mrs. Claiborne for the care of her mother, the guardian also paid for Annie Bearden’s doctors’ bills, medicine, destruction of property and additional help needed in her care, which continued until the time of her death. It appears that the guardian of Annie Bearden had complete control of her person and estate from the date of his appointment until her death.

The personal property and original homestead of Annie Bearden was situated in Young county. Upon the removal of the daughter, Mrs. Zula Claiborne, to Mineral Wells, she purchased a home in which she and her mother resided until the mother’s death. The other facts show sufficient grounds for the appointment of a permanent administrator.

In title 54, Rev. Civ. Statutes, relating to estates of decedents, it is provided (article 3293) that:

“Wills shall be admitted to probate, and letters testamentary or of administration shall be granted:
“1. In the county where the deceased resided, if he had a domicile or fixed place of residence in the State.
“2. If the deceased had no domicile or fixed place of residence in the State, but died in the State, then either in the county where his principal property was at the time of his death, or in the county where he died. * ⅜ *»

It is the contention of appellant that the domicile and fixed place of the residence of Annie Bearden at the time of her death was in Young county and not in Palo Pinto county, and that therefore the courts of Young county had the jurisdiction and power of the appointment. In other words, that Annie Bearden, being non compos mentis, did not and could not abandon her Young county homestead and could not voluntarily choose her residence or domicile so as to deprive the proper court of Young county of jurisdiction of her estate for administration, citing the following cases: Schwartz v. West, 37 Tex. Civ. App. 136, 84 S. W. 282, 283; Flynn v. Hancock, 35 Tex. Civ. App. 395, 80 S. W. 245; Angier v. Jones, 28 Tex. Civ. App. 402, 67 S. W. 449; Green v. Rugely, 23 Tex. 539; Foreman v. Meroney, 62 Tex. 727; Halverson v. Livengood (Tex. Civ. App.) 4 S.W.(2d) 588; Balfour v. Collins, 119 Tex. 122, 25 S.W.(2d) 804; Nunn on Homestead Exemptions, p. 163 and following, § 7.

It must be admitted that Annie Bearden was without the mental capacity to change her domicile and fixed place of residence from Young county, where it originally existed, to Palo Pinto county, where she died. But did her guardian have such power? Article 4162, chapter 6, Rev. Statutes, relating to the powers and duties of guardians, provides that: “The guardian of the person is entitled to the charge and control of the person of the ward, and the cai’e of his support and education, and his duties shall correspond with his rights.”

Article 4165 reads: “It is the duty of the guardian of the estate to take care of and manage such estate as a prudent man would manage his own property. He shall account for all rents, profits and revenues as the estate would have produced by such prudent management.”

Article 4166: “The guardian of both person and estate has all the rights and powers and shall perform all the duties of the guardian of the person and of the guardian of the estate.”

We find- no limitation of the powers thus given to a guardian of the person and estate of a minor or of one of unsound mind. The appellant Wilson was without dispute the guardian of the person and estate of Annie Bearden, and his good faith acts as such, we think, must be upheld.

We have examined the authorities cited in behalf of appellant, hut think they are without application to the facts in the present case. It is true that the temporary absence of a person from his homestead, with intent to return thereto, will not operate as its abandonment; nor will an enforced absence by confinement in an asylum so operate. Flynn v. Hancock, 35 Tex. Civ. App. 395, 80 S. W. 245. But here the evidence is undoubtedly sufficient to show that the guardian, whose will the statutes has in effect substituted for that) of Annie Bear-den, not only consented to but urged the removal of Annie Bear'den to Mineral Wells, and committed her care to the daughter, Mrs. Zula Claiborne, and there she remained some five years until her death, with the full consent of her guardian. Nothing in the evidence indicates that the guardian so acted in bad faith; on the contrary, it would seem that it was for the benefit of Annie Bearden in whose interest the guardian’s duty was to act, presumably with the approval of the probate court. The daughter, on removal to Mineral Wells, purchased a home with every evidence of its so continuing, and there is no evidence tending to show that either Mrs. Claiborne or the guardian at any time entertained the purpose or intent of returning Annie Bearden to her old home or to remove her residence to any other place. It must be assumed, we think, that under the circumstances the guardian’s commitment of the care of the afflicted mother to a loving daughter was in line with his duty, and, there appearing no purpose on the part of the daughter or of the guardian that the residence of the mother at Mineral Wells should ever be changed, the trial court was justified in holding that the fixed residence of Annie Bearden at the time of her death was in Palo Pinto county, Tex., within the meaning of the statute we have quoted. The fixity of things, of conditions, of a status, is variable in circumstance and subject to change.

In the case of Wheeler v. Hollis, 19 Tex. 525, 70 Am. Dec. 363, the Supreme Court of this state held that the guardian had authority to move his ward from one state to another. In that case it was said that: “The main question in the case is, whether the removal of Watson and wife with his ward, * * * from Mississippi to Texas, and hence to Arkansas, effected a change of the domicil of the ward; for it is not questioned and is undeniable, that the law of her domicil at the time of her death must regulate the succession to her personal property. Judge Story, in his Conflict of Daws, has examined the authorities on the question, whether a guardian has the power to change the domicil of his ward from one country to another, so as to change the rule of succession to his personal property, in case of his death, at some length; and from his citations it appears that, while there is a difference of opinion among foreign jurists, the weight of authority is in favor of the power, if the change was without fraud.”

The ruling so made was reaffirmed and approved by our Supreme Court in the same case as it appears in 33 Tex. 512.

In R. C. L. vol. 9, p. 550, § 13, it is said:

“The domicile of a person non compos men-tis is, by reason of his mental disability, usually not within his control, but under the control of his guardian, who may appoint the place of his residence. The domicil of an idiot may be changed by the direction or with the assent of his guardian, whether expressed or implied. This is especially true in case a person is wholly bereft of his understanding.
“And further if the guardian establishes the insane ward’s family in a new domicil, the domicil of the ward follows that of the family. The authority of a guardian of an insane person to fix his ward’s domicil is always subject, however, to the power of a court of chancery to restrain an improper exercise of the right. The guardian must act in good faith and in the best interests of his ward.”

In section 12 on the preceding page of the same work the following is said: “Where an infant is under guardianship the domicil of the guardian is not necessarily that of the ward. The ward is not usually a part of his guardian’s family. As a general rule, the guardian may appoint the place of the ward’s domicil, though it be found and often is a place distinct from his own. But such control is not absolute or arbitrary. The guardian must act in his ward’s best interests, and without fraud. But if he is acting fairly, even though his act changes the nature of the succession of the infant’s estate, ordinarily the ward must bear the consequences as risks incident to the management of his affairs.” See, also, American English Encyclopedia of Law, vol. 15 (2d Ed.) p. 52; Holyoke v. Haskins, 5 Pick. (Mass.) page 20, 16 Am. Dec. 372.

Without further discussion, we think under the facts and authorities available that the finding of the trial court of a want of jurisdiction for the appointment of a permanent administrator of the estate of Annie Bearden, deceased, must be upheld, and the judgment below in all things affirmed.


author: COMBS, Justice.

text:
    ORANGE & NORTHWESTERN RAILROAD COMPANY, Appellant, v. Luther HARRIS et al., Appellees.
    No. 2177.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 9, 1933.
    Rehearing Denied March 8, 1933.
    For original opinion, see 57 S.W.(2d) 931.
    C. T. Butler and W. G. Reeves, both of Beaumont, O. R. Sholars, of Orange, and Andrews, Streetman, Logue & Mobley, of Houston, for appellant.
    Dies, Stephenson & Dies, of Orange, for appellees.
   Dissenting Opinion on Rehearing.

COMBS, Justice.

In view of the vigorous motion for rehearing filed in this case by the appellant, we have again gone over the record with particular reference to the matters wherein appellant insists we erred in affirming the judgment of the trial court. My associates are of the opinion that our original judgment is correct. See 57 S.W.(2d) 931. However, I have reached the conclusion that the motion for rehearing should be granted and the case reversed.

In affirming the judgment of the trial court we held, among other things, that the evidence supported the finding of the jury to the effect that defendant’s negligence in failing to have some one stationed at or near the flat car to notify and warn persons traveling the street of the presence of the flat car was a proximate cause of plaintiff’s injuries. I think the evidence insufficient to sustain this finding, but since the majority have held the evidence sufficient, and the holding of this court being final on that question, it is unnecessary to discuss it here.

We also held that the issue of unavoidable accident was not raised by the evidence and that consequently the trial court did not err in refusing to submit it. As I view it, the evidence clearly raises the issue.

The law seems to be that the issue of unavoidable accident arises in any negligence case when a state of facts exist which would support a finding that the accident was not occasioned in any degree, either directly or remotely, by the negligence of either party and that neither party in the exercise of ordinary care could have foreseen or prevented it. Russell v. Bailey (Tex. Civ. App.) 299 S. W. 1108; Wichita Falls Traction Co. v. Craig (Tex. Civ. App.) 250 S. W. 733; Galveston, H. & S. A. Railway Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Dallas. Ry. & Ter. Co. v. Darden (Tex. Com. App.) 38 S.W.(2d) 777; Kansas City, M. & O. Railway Co. v. Foster (Tex. Civ. App.) 54 S.W.(2d) 270, 273; Boyles v. McClure et al. (Tex. Com. App.) 243 S. W. 1080. Some of the eases above cited, particularly the earlier decisions, such as Russell v. Bailey, give the rule a much more restricted application, and some of the late ones suggest the difficulty of announcing a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. Dallas Ry. & Ter. Co. v. Darden, supra; Kansas City, M. & O. Railway Co. v. Foster, supra. It would seem that the rule, as above stated, may be fairly deduced from the decisions of our courts when they are considered as a whole and in the light of the facts in each case.

I think the facts of this case bring it within the above rule. The material facts have been set forth in the opinion of Justice O’Quinn and need not be repeated here except to briefly summarize such of them as are pertinent to this discussion. The accident occurred at night. The street and railroad track where the' collision occurred crossed at practically right angles and on a level. The street was paved and was straight for a considerable distance in either direction from the point of the collision. The flat ear was partly obstructing the crossing; it extended more than half way across the street and entirely across the side of the street along which the plaintiff was driving. The flat car was loaded with piling to a height of six or eight feet above the floor of the car. Some of the testimony indicated that the ends of the piling extended within three or four feet of the end of the flat car, thus indicating that the load of piling was partly over the street. Employees of the defendant in charge of the derailed car hung an ordinary lantern on the drawhead of the car and one of the employees went for a red lantern to put on it. While he was gone the plaintiff, driving his automobile, as he says, in a prudent and lawful manner, and at a speed of about fourteen miles per hour, collided with the flat car with the resulting injuries complained of. He testified that he did not see the flat car until he collided with it. The evidence showed that there was a street light hanging over the center of the street some fifty-four feet from the crossing in the direction from which the plaintiff approached. Plaintiff’s own testimony tended strongly to show that his injuries resulted from the presence of this street light, which-he said so blinded him that he could not see the flat car. In fact, he offered no other explanation of his failure to see it. The evidence does not show that the employees of the railroad company knew that this street light would have the effect of blinding drivers of automobiles who might drive along the street and, as I view it, there is no evidence from which it may he reasonably inferred tliat they should have known of such fact in the .exercise of ordinary care. And since the street light was not owned or controlled by the railway company, no inference arises that they did know of it. Missouri, K. & T. R. Co. of Texas v. Long (Tex. Com. App.) 299 S. W. 854.

The jury found that the defendant was not negligent in leaving the car on the crossing and that plaintiff was not guilty of contributory negligence in any of the respects charged by the defendant. Their findings on these issues are supported by the evidence. The) jury convicted the defendant of negligence proximately causing the plaintiff’s injuries, in failing to station a flagman at the derailed car to warn persons using the street of the presence of it on the crossing. I think the evidence, which has been briefly summarized above, would have supported the finding that defendant, under all of the attendant circumstances, was not negligent in that respect. In other words, the evidence would have warranted the jury in finding that, the employees of the defendant in charge of the derailed car were not negligent in assuming that a person driving an automobile along the street with due care for his own safety would discover the flat car in time to avoid striking it without the aid of a flagman to warn him of the presence of it. If this be true, then a state of facts did exist which would have warranted the jury in concluding that the accident was not occasioned in any degree, either directly or remotely, by the negligence of either party. The street light was maintained 'by the city of Orange. Neither of the parties to this suit had any connection with it in any way and, as above stated, there is nothing to indicate that the defendant knew of the hazard created by it, nor did the plaintiff know of the obstructed condition of the crossing. I think these facts raised the issue and that had the issue been affirmatively submitted, the jury would have been warranted in finding that the accident was un-' avoidable. The issue thus presented was in no sense a corollated, supplemental, or supporting fact of the issues of negligence raised by the evidence. Instead, it presented a separate and distinct issue entirely independent of the issues of negligence. It was not an issue which was comprehended within the issues submitted. On the contrary, it was of that character which required an independent finding of fact. See Ormsby et al. v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084. The issue presented a complete defense to plaintiff’s suit and upon proper request the defendant had a right to have it submitted to the jury, and it is wholly immaterial to defendant’s right to have it submitted that there was also evidence to. support the jury’s finding that plaintiff’s injuries resulted from defendant’s negligence. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W.(2d) 521; Galveston, H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534. Defendant excepted to the court’s charge because of its failure to submit the issue of unavoidable accident and also seasonably requested'the submission of it. I think the refusal of the trial court to submit this issue constitutes reversible error.


author: SMITH, Justice.

text:
    TEXAS & N. O. R. CO. v. RACHEL.
    No. 9030.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    John C. North and R. B. King, both of Corpus Christi, for appellant.
    Perkins & Floyd and O. W. Perkins, Jr., all of Alice, for appellee.
   SMITH, Justice.

This is an ordinary action for damages to a shipment of a carload of cattle from Alice to the Fort Worth Stock Yards, where the cattle were sold on a delayed market. Several head of the cattle died in transit, and others were in bad condition upon arrival at destination.

The shipper and another cattleman both testified that the cattle were canners and cutters and were thin in flesh when tendered for shipment, but were nevertheless strong enough and in good enough condition to stand the trip without injury, if moved by the carrier with ordinary care and diligence. Three veterinarians, who examined the shipment on arrival at destination, testified that the animals were so poor and thin and weak and emaciated that they could not have been shipped that distance without injury on account of those'inherent vices. In short, appellee’s witnesses testified in effect that the injuries were occasioned by negligent handling by the carrier, while appellant’s witnesses testified, on the other hand, that those injuries were caused by the inherent vices of the animals. The jury chose to believe the shipper’s witnesses and to disregard the testimony offered by the carrier. It may be that this court, or any other court, or any other jury than that impaneled, would have reached a different conclusion upon the same evidence, but that is unimportant, for, there being material evidence to support both theories, the jury's finding, fortified by the trial court’s approval, is conclusive lipon this -court. Upon these conclusions we overrule the first six of appellant’s propositions. The remaining propositions are without merit, and will be overruled.

The. judgment is affirmed.


author: LATTIMORE, Justice. CONNER, Chief Justice.

text:
    MILLS v. BROWNING.
    No. 12662.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1933.
    Wayne Somerville and W. E. Fitzgerald, both of Wichita Falls, for appellant.

      L. V. Abernathy and O. E. Nelson, both of Wichita Palls, for appellee.
   LATTIMORE, Justice.

This suit was filed by Leo Mills, appellant, against Perry Browning, sheriff of Wichita county, appellee, on the 16th day of May, 1931, to recover 10 automatic mint-vending machines which the plaintiff had seized and had condemned under articles 636 and 637, Rev. Criminal Statutes (Penal Code).

Appellee, Browning, answered by a general denial and a special plea, to the effect that each of the machines for which the plaintiff sued constituted a gambling device, and the same were being used for gambling purposes.

The evidence was submitted to a jury on special issues, in answer to which the jury found that the machines in question were the property of plaintiff, Mills, and that they were “gaming devices.” Upon a verdict so returned, the court entered judgment that the machines and each of them were gaming-devices, and that the same should be destroyed by the sheriff as provided by law, and from this judgment the plaintiff, Mills, has duly prosecuted this appeal.

Upon the seizing of such machines by the peace officers under article 636 of the Penal Code, a proceeding which may be in rem to determine whether same shall be destroyed is directed by article 637 of the Penal Code.

The right of a claimant to such machines is set out in article 638 of the Penal Code as follows: “Any person having interest in or entitled to possession of any property so seized shall have the right at any time before the destruction of such property, as in ordinary civil cases, to try the issue of whether or not such property is a gaming table, or bank or device or was used as equipment or paraphernalia of any gambling house and to recover the possession of the same. * * * ”

The proceeding in rem (article 637, Penal Code) had been conducted and the machines ordered destroyed. An analysis of article 638 of the Penal Code shows that, if the machines are either (a) gaming devices, or (b) equipment or paraphernalia of any gambling house, they are to be destroyed. A gaming device may be (a) one which is made primarily and principally for gambling, e. g., a roulette wheel, and, this primary and principal purpose being established, no further proof of its actual use is required; or (b) it may be a device which is useful for service to law-abiding society, in which event the article itself must be shown to be actually used in gambling to constitute it condemnable. This, of course, does not attempt to limit the scope of the remainder of the article. These definitions are of long standing, and, since their announcement, the ingenuity of some types of our citizens has devoted itself to an effort- to make the former which would to a judge or jury appear to be the latter, and the law reports abound with the descriptions of them. Fortunately, machines such as in this case have already found their biographer. Queen v. State, 93 Tex. Cr. R. 173, 246 S. W. 384.

The jury have found the machines were gaming devices. We thus are not called to decide that these machines are gaming devices, but must not repudiate the verdict, unless there is no evidence to sustain it.

Let us examine this record, taking, as we must, the evidence most strongly favorable to the verdict. The state was entitled to make out its case by circumstantial evidence. The victim inserted a coin of 5 cents in the slot, pulled a lever, and received a varying number of tokens, some of them reciting thereon “good for 5⅜ in merchandise”; others bearing no inscription. Each of these could be, if the victim desired, played back, into the machine in the hope of increasing the number of tokens in hand. He also could, when his coin was played, receive a 2-cent package of mints by turning a lever on the side, if there were mints in the machino (some of these machines did not have mints in them). True, appellant says he did not put those merchandise checks in the machine, and that the slug affair was only “to stimulate trade in the machines,” but the jury had a right to disbelieve him and exercised its right. His machine at “The Smokehouse” contained such checks which were so redeemed. That machine is not one of these sought to be reclaimed in this suit.

Now let us look at appellant’s case as he would have us believe it. He pictures grown men crowding up to these machines to spend their nickels playing them — no skill, no wisdom, no matching of wits, or strength, or knowledge, or dexterity — in order to give a person unknown to the victim 3 cents, even if he got his 2 cents in mints, and to get a handful of tokens which were utterly worthless to him and known by him so to be when he put his nickel in. He could only put them back into the machine and, if fortunate, receive more “tokens.” He did not even receive mints on playing his tokens. Now mints, I imagine, would be pretty tiresome as a steady diet. Unless one had just consumed an unusual 'ration of onions, or garlic, or bootleg liquor, whence comes this sudden “stimulation of trade” for mints? The thing staggers credulity.

Not only that, but the machine can be doctored and changed by the owner, and this record shows that these machines had been so treated. Thus the owner sets the machine at the ratio he wants the victim to receive in slugs, and can thus regulate the profits the machine will make according to how “trade” subjects itself to “stimulation,” or how much “come on” is necessary to keep the trade “stimulated.” The best use these machines have is to exemplify the truth of the Good Book which says, “A fool and his money are soon parted.” It seems to the writer that these machines are essentially gaming devices, and that any other holding puts the civil appellate courts of Texas contrary to the criminal rules. Queen v. State, 93 Tex. Cr. R. 173, 246 S. W. 384; Chambers v. Bachtel (C. C. A.) 55 F.(2d) 851; Varden v. State (Tex. Civ. App.) 52 S.W.(2d) 378.

Now as to the evidence complained of: Appellee could defeat this suit if appellant had no interest in or right of possession to the machines. He contended that these machines did not belong to appellant, hut instead to one Nigro, from whom appellant claimed he had purchased same by oral contract just prior to their seizure. Naturally, the direct evidence on this issue could be and was- in the exclusive possession of appellant and Nigro, the latter of whom appellee showed to be interested in the fate of the machines and who was helping appellant in presenting his case. Appellee, therefore, was; compelled again to resort to circumstantial evidence. His cross-examination in an effort to show by circumstances that Nigro controlled these machines and handled them in Dallas was permissible. Moreover, any error was harmless. The record shows that, when appellee asked the question: “How came you to quit operating them there in Dallas County?” objection to which question was overruled, the plaintiff answered: “The machines we operated in Dallas were being run on straight money and not gambling machines.” No other objection is shown to have been made to the inquiry about Dallas county.

When asked where his other machinqs were, plaintiff’s objection was overruled, and he answered that he was afraid to tell for fear the sheriff would seize them, and the court thereupon refused to require him to answer. Plainly there was no error as to appellant’s case in this.

Mr. Somerville, counsel for appellant, took the stand and voluntarily testified to confidential communications between him and appellant tending to show that Mills was his client and that the machines belonged to appellant. Appellee therefore was entitled to cross-examine him to show that in fact Nigro had been defending the condemnation prior to this trial, and had paid Somer-ville his fee in this ease before us; and that appellant had paid him the fee for representing Nigro. When he is Nigro’s lawyer, he is not privileged from testifying that Mills paid his fee, and, when he is Mills’ lawyer, he is not privileged from testifying that Nigro paid his fee; neither is a communication between attorney and client who makes the objection, and the ruling does not affect this appellant’s rights as to his confidence in his lawyer. To state on the witness stand now what he declared in open court in the condemnation case, that he represented Nigro, is plainly not privileged. Moreover, all of this was highly important on the appellee’s circumstantial case as to who owned these machines. It is also harmless, for the jury found that issue in favor of appellant.

Now as to the testimony of Lawrence Smith and Dr. Salmon. This plaintiff had 26 machines in Wichita Falls. Only 10 are involved in this suit. I think we can safely say that, as far as the appellant is concerned, they all stood presumptively in the same status as to being gambling devices. Appellant took the stand and testified to owning his 10 machines and where they were located. As to the other 15 (one having been condemned as actually being used for gambling and destroyed), he was most uncertain. He was asked about numerous locations. He could not be certain about any except the one already condemned. Now this is a civil case. Appellant has definite evidence as to whether these other machines, which were being actually used for gambling, were his or not, and is asked about it, but he does not produce that testimony. The sheriff has proved that one of appellant’s machines was used for gambling ; that the others were like it; that some of these machines in controversy had tokens in them asserting value for merchandise. It seems to me that this case is complete. The fact that such tokens were not redeemed adds nothing of guilt to the promise they carry on their face. The testimony of Smith and Salmon was harmless.

Neither is the sheriff to be criticized for not placing on the witness stand the merchants who permitted the machines to be operated in their stores. True, upon such testimony the merchant may have immunity from prosecution, but none the less, if the state’s case is true, he confesses himself a criminal, escaping punishment by pointing out his co-criminal. It seems to me no presumption against the sheriff arises from the absence of such witnesses. On the contrary,, if the operations of the machines are as innocent as appellant says, he can produce his partners, the merchants, on the stand to give them the opportunity to publicly declare the decency and good conduct of their stores. The criticism is just against appellant, if there be any.

For the reasons indicated, the judgment of the trial court is affirmed.

CONNER, Chief Justice.

I concur in the affirmance of the judgment in this case, on the ground that the evidence seems to be sufficient to support the jury’s finding that the machines in question are gambling devices, as a matter of law. If so, as the trial court and my associates have concluded, the fact that irrelevant and inadmissible evidence was admitted over tbe objection of appellant is harmless, and I therefore do not wish to he understood as passing upon the assignments of error complaining of the court’s rulings in the admission of the evidence.


author: HICKMAN, 'Chief Justice.

text:
    INDEPENDENT-EASTERN TORPEDO CO. v. HERRINGTON et al.

    No. 1079.
    Court of Civil Appeals of Texas. Eastland.
    April 12, 1932.
    Rehearing Denied April 7, 1933.

      Yancey, Spillers & Brown, of Tulsa, Okl., and Ben ,T. Dean, of Breckenridge, for appellant.
    Caldwell, Gillen, Francis & Gallaglier, of Dallas, for appellees.

      writ of error granted.

   HICKMAN, 'Chief Justice.

On or about October 17,1929, appellee Fred D. Herrington sustained personal injuries from an explosion of dynamite. At that time he was employed by the Texas Pacific Coal & Oil Company, hereinafter referred to as the oil company, as field superintendent of production in Stephens county. His employer was carrying compensation insurance with Texas Pacific Fidelity & Surety Company, hereinafter referred to as the surety company, and he collected the compensation to which he was entitled under the Workmen’s Compensation Daw (Rey. St. 1925, art. 8306 et seq., as amended). This suit was instituted by him against appellant Independent-Eastern Torpedo Company, hereinafter referred to as the tordepo company, for damages on account of such injuries under allegations that they were proximately caused by its negligence in certain particulars hereinafter noticed. The surety company was joined as a party defendant in the action under an allegation that “the amount of compensation paid plaintiff on account of said injuries by said defendant is to plaintiff unknown but is well known to defendant.” Its right to subrogation was recognized to the extent of its payments. The prayer as against said surety company was that it be required to set up its claim for all payments of compensation made by it to appellee. Both defendants filed answers. The answer of the torpedo company, in so far as it pleaded defenses material to a decision of the questions presented by this appeal, will be noticed more particularly hex'einafter. The answer of the surety company pleaded facts showing its right to be subrogated to appellee’s cause of action against the torpedo company to the amount of $5,084.72.

The torpedo company was employed by the oil company to shoot a well on the Yeale lease in Stephens county. After the nitroglycerin had been lowered into the bottom of the well, and while its shooter, Frank Davidson, was preparing a time bomb for use in exploding the nitroglycerin, some dynamite, used in some manner in connection with the time bomb, exploded, killing Davidson and injuring appellee in the manner hereinafter more fully disclosed. The specific grounds of negligence found by the jury were (1) that the shooter, Frank Davidson, immediately prior to the explosion, struck the bomb container against the ground; (2) that Davidson failed to warn or notify appellee that he was about to connect the time clock with the bomb before doing so; and (3) that the torpedo company, upon the occasion in question, failed to furnish a sufficient number of employees skilled in the handling of explosives for the purpose of shooting the well. Each of these acts of negligence was found to be a proximate cause of appellee’s injuries. The verdict acquitted appellee of contributory negligence and declared that the explosion was not the result of an unavoidable accident. The amount of appellee’s damages was placed at $20,000. Upon this verdict judgment was rendered in favor of the surety company upon its right of subrogation for $5,084.72, and for appellee Herrington for $14,915.24. No questions are presented as between Herring-ton and the surety company as to its right of subrogation in the amount decreed by' the judgment. The torpedo company appealed.

The questions presented for decision in appellant’s brief will be considered in their order.

Error is assigned to the action of the trial court in overruling the torpedo company’s motion for an instructed verdict. As a ground for this contention, it is claimed that the undisputed evidence establishes that Frank Davidson, the shooter, was not its servant at the time of the explosion, but was the servant of the King Time Bomb Company. The evidence discloses that the oil company employed the torpedo company to shoot its well with twenty quarts of nitroglycerin. Frank Davidson was not then in the regular employ of the torpedo company, but was employed by it as an extra shooter when it had occasion to use him, and for his services he received $10 per shot. Ordinarily the nitroglycerin in the bottom of the- well is exploded by the use of a jack Squibb. On the occasion in question, the oil company requested the torpedo company to use a time bomb manufactured by the King Time Bomb Company. This bomb was purchased by the oil company and not furnished by the torpedo company. When shooters would use this time bomb, they would report such fact to the company manufacturing it and would be paid $6 for each one used. The King Time Bomb Company was not engaged in the business of shooting oil wells, but was engaged in the business of manufacturing bombs to be used for that purpose. The torpedo company was engaged in that business, and was employed by the oil company, not merely to furnish nitroglycerin with which to shoot the well, but to shoot the well. This was done by causing an explosion of nitroglycerin at the bottom of the hole. For this purpose it employed shooters. While in the process of carrying out its contract with the oil company to shoot the well in question, the explosion occurred which resulted in appellee’s injuries. This explosion was found by the jury to have resulted, not from any inherent defects in the bomb, but from the negligence of the shooter employed by appellant.

It is contended by appellant that, while Davidson was its general servant, he was the special servant of the King Time Bomb Company, and that his acts of negligence were not committed while he was acting for his general master, but while he was acting for his special master. It is a sound and well-established rule of law, as asserted by appellant, that a general servant of one employer may become the particular servant of another, who may become liable for his acts while performing a particular service. But that rule has no application under the facts in this case. In order for it to apply, the person to whom the general employer intrusts his servant must have a proprietary interest in the work in which the servant is used and must have the right to exercise exclusive control of the servant in carrying on that work. “He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details.” Cunningham v. Railroad, 51 Tex. 503, 32 Am. Rep. 632. The applicable test is stated in 18 R. C. B. p. 784, in this language: “In determining whether, in respect of a particular act, a loaned servant is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in the business of which the person is in control as a proprietor. * * * ”

The King Time Bomb Company was not the proprietor during any step of the preparations for shooting this well. It was concerned in manufacturing and selling the device to be used for that purpose, and to promote its business paid bonuses to shooters who used its products. On the other hand, the torpedo company contracted as an independent contractor to shoot the well and was in control of the entire operation as a proprietor. Under these facts we know of no reason or authority warranting the conclusion that Davidson was not its servant at the time of the explosion, and the first proposition is overruled.

The court, in its charge to the jury, defined “agent” as follows:' “The term ‘agent’, as used above, is one who has authority from another to act for him in a matter of some business or transaction, and in performing said business or transaction acts under the direction and at the instance and request of such other person.”

To which definition appellant excepted in this language: “This defendant excepts to the definition of the term ‘agent’ because it is not a legal term requiring definition, and is a term of ordinary signification and is understood by every one; and, secondly, because the definition as given is an incorrect definition and prejudicial and misleading, and especially misleading under the facts of this case, because it tends to inform the jury that an agent is one who acts for another in any capacity; whereas, under the facts of this case, it is shown in the evidence, that Drank Davidson was the agent of the defendant in placing the shot in the well, but was not the agent of this defendant in preparing and lowering the bomb in question; and under the pleadings and the evidence in this case, the only injury complained of is with reference to the explosion of the said bomb.”

The only issue submitted to the jury in which the word “agent” was used was as follows: “Do you find from a preponderance of the evidence that Frank Davidson was, at the time of the explosion in question, the agent or servant of the Independent-Eastern Torpedo Company in the preparation of the bomb in question?”

It will be noted that this iásue limits •the jury in its answer to the “time, of the explosion.” We have some doubts as to whether the exception is sufficient to raise any question other than that the undisputed evidence shows that Davidson was not the agent of appellant in preparing and lowering the bomb, a question which has been disposed of in our consideration of the first proposition. But, if the exception be construed as sufficient to point out that the definition authorized the jury to answer the special issue above quoted in the affirmative if they believed Davidson was the agent of appellant for any purpose, that objection is fully met by a consideration of the issue which limited the jury to a determination of whether he was such agent “in the preparation of the bomb in question.” It is our conclusion that the definition was not subject to the objection made thereto, and appellant’s contention is overruled.

As a special defense to appellee’s cause of action, appellant set up in its answer that, “on or about the 27th day of January, 1931, the Texas Pacific Fidelity & Surety Company, for a valuable consideration, and a valuable consideration other than that expressed in the assignment hereinafter set up, and other than any payments that might have been due plaintiff under the Workmen’s Compensation Act, purchased from plaintiff all of his rights, claims and ekoses in action against this defendant growing out of or incident to the injuries described and set up in plaintiff’s petition and vested in said Texas Pacific Fidelity & Surety Company full power and authority in the name, place and stead of plaintiff to release, discharge and acquit this defendant for all claims against it, or growing out of said explosion set forth in plaintiff’s petition, a substantial copy of which assignment is hereto attached, marked Exhibit A, and made a part hereof.” Follows then the allegation that thereafter the appellant, for a valuable consideration, purchased from said surety company an assignment of said cause of action which had theretofore been assigned by appellee to said surety company, and that appellant is now the owner of same and appellee has no right to maintain this action. The exhibit attached to the pleading will not be copied in full, but it unquestionably undertook to assign appellee’s cause of action against appellant to the surety company and authorize and empower said company to release, discharge, and acquit the torpedo company from all of appellee’s claims against it on account of the damages caused by the explosion in question.

To this pleading the appellee interposed certain special exceptions which were by the court .sustained, and the rulings of the court on these several exceptions are assigned as errors. We have concluded that one of these exceptions, at least, was properly sustained. It is therefore unnecessary to determine1 the correctness of the rulings on the others, and we shall discuss only that ruling which we uphold, the effect of which is to render the defense pleaded unavailing. The substance of the exception which we hold the trial court properly sustained was that it affirmatively appeared from the allegations of the pleading that the assignment was by an employee under the Workmen’s Compensation Law of Texas to the insurance carrier, which, in turn, adjusted the liability with the negligent third person, and that there was no allegation that the Industrial Accident Board or a court of competent jurisdiction had conducted any hearing or entered any order of approval with reference thereto. Our Workmen’s Compensation Law, in article 8307, R. S. 1925, § 6a, provides for the subrogation by the insurance carrier to the rights of the injured employee against a negligent third person to the extent that such insurance carrier has paid compensation to the injured employee. The concluding sentence of that section is as follows: “The association shall not have the right to adjust or compromise" such liability against such third person without notice to the injured employee or his beneficiaries and the approval of the board, upon a hearing thereof.”

The pleading affirmatively disclosed that appellee was an employee under the Workmen’s Compensation Law; that the surety company to whom he assigned his claim against appellant was the association, and that appellant was the third person whose alleged negligence caused appellee’s injuries. The exact question for our determination is: Do the transactions pleaded by appellant as a defense fall within the condemnation of the statute quoted above; there being no allegation that same were approved by the Industrial Accident Board? The language does not expressly prohibit the assignment by the employee to the association of his chose in action against the negligent third person, and, if the right to make such assignment without the approval of the board is denied by the statute, the legislative intent to do so must be found from a construction of the language employed. This provision of the statute was made solely for the benefit of the employee and his beneficiaries, and was designed to protect them in a time of need from their own improvidence and the .urgency of their financial necessities. The party against whom that protection is afforded is the association, which has the strong incentive of self-interest to adjust or compromise claims against the negligent third person. Had the association in the instant case made a tentative agreement with the negligent third person prior to acquiring the assignment from the employee, there would be no question, we take it, but that the transaction would amount to an adjustment or compromise of “such liability.” Is it any the less so because, according to the allegations, the settlement with the third person was made subsequent to the obtaining of the assignment? .We think not. So far as the employee is concerned (and he is the only person whom the statute was designed to protect), the liability against the torpedo company was adjusted when he executed and delivered the assignment of his claim to the surety company, provided that assignment is effective. When the surety company assigned the claim to the appellant, the same was extinguished. If these transactions are upheld, their effect is to fully settle and adjust appellant’s liability without the approval of the Industrial Accident Board, the very thing the statute seeks to prevent. We are cited to no case which we deem decisive of the question, but a somewhat similar state of facts was before the Fort Worth court in Lancaster v. Hunter, 217 S. W. 765. In that case the assignment to the association was construed to be only for such amount as it was entitled to be subrogated to under the statute, but it is significant that the opinion points out that the settlement made with the association had not been approved by the Industrial Accident Board, thus disclosing that court’s opinion that the statute was applicable to assignments by the employee to the association. We too believe that it was the intent of the Legislature that an assignment by an injured employee to the association of his cause of action against a negligent third person, and a subsequent settlement with the third person, should not be binding unless approved by the Industrial Accident Board, and, so believing, we uphold the action of the trial court in sustaining the special exception urged to this defense..

We do not think it would be profitable to write at length .upon appellant’s contention that appellee was guilty of contributory negligence as a matter of law. To participara in an operation attended by some latent danger does not render one guilty of contributory negligence as a matter of law. Quanah, etc., Ry. Co. v. McWhorter (Tex. Civ. App.) 136 S. W. 1162; Payne v. Doubtful (Tex. Civ. App.) 236 S. W. 134. At the time of the explosion the nitroglycerin had already been lowered in the bottom of the well. The only dangerous instruments left on top were a few sticks of dynamite. They were not dangerous until connected with the time device. There was testimony that the shooter promised to warn appellee before connecting the dynamite with this device, but that he neglected to dó so. That is one of the unchallenged findings of the jury. There is evidence also to the effect that, as soon ás appellee discovered that Davidson had connected the time clock and the dynamite, he started to run, but was only able to take a few steps before the explosion occurred. It requires no citation of authorities to establish the proposition that the question of whether one is guilty of contributory negligence is a jury question, and that it should not be taken away from the jury unless the facts are of such a character that reasonable minds could not differ on the conclusion to be drawn therefrom. We overrule this contention.

In sirbmitting the issues as to whether or not appellant was guilty of the specific acts of negligence alleged, the form of the issues in each instance was as follows: “Do you find from a preponderance of the evidence that * * *?” It is insisted that the court erred in failing to instruct the jury that the burden of proof was upon appellee to establish by a preponderance of the evidence the affirmative of said special issues. This exact question has been decided so many times that we shall not undertake to collate the authorities. The issues themselves require that answers thereto be based upon a preponderance of the evidence. The effect of this requirement is to place the burden upon the one holding the affirmative of such issues. Many of the eases so holding are collated in Speer’s Law of Special Issues in Texas, p. 184, § 134. This court has had occasion to so hold in at least three cases. See Commercial Standard Ins. Co. v. Lee (Tex. Civ. App.) 37 S.W.(2d) 789; Vletas v. Stagner (Tex. Civ. App.) 45 S.W.(2d) 1009; Texas Indemnity Ins. Co. v. Bridges (Tex. Civ. App..) 52 S.W.(2d) 1075.

The assignment complaining of the admission of certain testimony to the effect that the shooter requested appellee to fill some cans with sand is without merit, and, if the testimony was improperly admitted, it was harmless. We shall not therefore write upon that question.

It is assigned that the judgment is excessive. The recovery was for $20,000, admittedly a large sum of money. At the time of his injuries, appellee was 37 years of age, and was drawing a salary of $225 per month. There is evidence that, as a result of the explosion, he suffered the total loss of his left eye and a permanent injury to his right eye, left forearm, right hand, left leg, and his entire nervous system. There was .evidence of severe physical pain and mental anguish, and also expert testimony that appellee was permanently and totally disabled to perform labor. There was evidence from appellant’s viewpoint tending to disprove the contention that appellee was permanently and totally disabled, but this evidence made only a fact issue. The jury, who had the benefit of observing appellee and hearing him testify, has set his damages at $20,000. The trial judge has overruled the contention that the amount is excessive, and we cannot say that he ■abused his discretion in so ruling, or that the amount found by the jury was not warranted ■by the record.

Having considered and overruled each question presented, it is our order that the judgment of the trial court be affirmed. f

PTJNDERBTTRK, X, dissents. See 59 S.W. (2d) 1108.


text:
    KEELING et al. v. COLLINS GRAIN CO.
    No. 12781.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 25, 1933.
    Rehearing Denied April 1, 1933.

      Cantey, Hanger & McMahon and Carlisle Cravens, all of Fort Worth, for appellants.
    Baylor B. Brown and Allen C. Steere, both of Fort Worth, for appellee.
   CONNER, Chief Justice.

This appeal is from an order of the county court of Tarrant county overruling the pleas of privilege of appellants, J. R. Keeling and Emmett T. Keeling, residing and doing business as J. R. Keeling & Son in Taylor county.

The material facts are substantially as follows: The Collins Grain Company, doing business in the city of Fort Worth, Tarrant county, through its executive officer, called the Keelings over the telephone and ordered a carload of milo maize heads shipped to Cle-burne, Johnson county, agreeing to pay therefor the stipulated price agreed upon, but directed that the bill of lading and draft for the payment should be sent to the grain company at Fort Worth. The Keelings shipped the grain to Cleburne, Johnson county, receiving from the railroad company a bill of lading to “shipper’s order notify Collins Grain Company,” and indorsed the bill of lading, attached thereto a draft for the purchase price, and sent same to a bank in Fort Worth for collection. The grain company upon notification paid the draft at Fort Worth, received the bill of lading, sent to Cleburne its agent, who, on examination of the grain, concluded that it was not in good order, and for the purpose of having it tested had the shipment diverted to Fort Worth; there being no facilities for such a' test at Cleburne. Having found upon a test, as the grain company alleges, that the grain had been damaged, this suit was instituted in the justice court of Tarrant county against the Keelings to recover the sum of $150 damages on the ground that the grain was not of the grade and merchantable quality contracted for.

We do not think this case distinguishable in principle from that of Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 60 A. L. R. 672, where, in a carefully worded opinion written by Mr. Justice Greenwood, it is held that a shipper’s order bill of lading attached to a sight draft constitutes a written obligation on the part of the seller, performable in the county where the draft is payable. In the ease referred to the diversion of the shipment was to the point where the draft was made payable; whereas, in the case before us the diversion was caused by the grain company after the arrival of the cars at the destination specified in the bill of lading. Generally speaking, either the shipper or the person to whom delivery is intended to be made may divert a shipment over a railroad, but such right of diversion exists only during the transit and not upon arrival at the specified destination. See Texas Jurisprudence, vol. 8, § 73, p. 130, and eases cited in note in 61 A. L. R. page 1316, par. III. But we do not think this distinguishing feature material. As a matter of fact, the grain company was accorded the privilege of diversion by the railroad company whether or not the grain company was entitled thereto. The legal effect of the shippers in causing the delivery of the shipment to be made to their order was to reserve in themselves the legal title and right of possession of the grain until it was paid for. See Adoue v. Seeligson & Co., 54 Tex. 594; Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. St. Rep. 861; Texas Jurisprudence, vol. 8, §§ 18-22. Hence the bill of lading in question having been indorsed by appellants with draft attached and sent to its agent at Fort Worth for payment amounted to a written agreement, performable in Tarrant county, to confer upon appellees the legal title and right to possession. If so, as we think must be held, under the decision of Marcus v. Armer, supra, appellants’ case comes within the meaning of exception 5 to the general rule of our statute entitling inhabitants of this state to be sued in the county of their residence. The exception thus reads: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.”

The judgment below is accordingly affirmed upon the authority of Marcus v. Armer, supra, and eases cited therein, and article 894, Rev. Civ. Statutes, and 4 R. C. L. p. 32, par. 35.

On Motion for Rehearing.

We are not convinced of error in our conclusion as announced in the brief opinion filed on February 25, 1933, by a.review of the authorities cited in the motion. The case as we construe it is- not one based upon an incidental requirement of a contract as treated in the case of Bomar Cotton Oil Co. v. Schubert (Tex. Civ. App.) 145 S. W. 1193, pressed upon us in behalf of appellants, but one, as we think, that has for its basis a violation of a written contract. The bill of lading and its indorsement by the shipper, with draft for payment attached thereto, is certainly treated as a contract in writing as we construe the opinion of Judge Greenwood in the case of Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 60 A. L. R. 672. Thereby the shipper agrees to convey title and deliver to the .consignee the grain shipped upon payment of the draft. By the payment of the draft by the appellee it then, and not before, acquired title to the cotton seed. As must-be held we think, such a sale included an implied warranty on the part of the seller that the grain so transferred was of merchantable quality, and the basis of this suit in substance is upon the breach of the agreement necessarily embodied in and implied from the bill of lading and payment of draft.

The motion for rehearing is overruled.


author: GRAVES, Justice. GRAVES, Justice.

text:
    LONG v. GALVESTON ELECTRIC CO.
    No. 9808.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1933.
    Rehearing Denied March 23, 1933.
    On Motion for Rehearing April 5, 1933.
    Brantly Harris and John D. Watkins, both of Galveston, for appellant.
    Terry, Cavin & Mills and O. B. Wigley, all of Galveston, for appellee.
   GRAVES, Justice.

The suit is for damages against the electric company alleged to have resulted to the five year old child, Jacob Long, Jr., from the collision between it and one of the company’s street cars at the intersection of Avenue L and Eleventh street in the city of Galveston, upon averments that the child’s injuries had been the proximate result of negligence upon the part of the operatives of the car in a number of detailed particulars; the issues of negligence raised by the pleadings and proof were submitted to a jury in special inquiries, all of which in final effect were answered favorably to the electric company, whereupon judgment upon the verdict entered for it.

On the appeal by the child through its next friend, it is contended that the verdict lacked support in the evidence, being contrary to the overwhelming preponderance thereof, that the court erred in admitting the testimony of Mrs. Martini as to alleged statements made to her by the child’s mother after the accident, also in admitting the testimony of the witness McLin as to certain tests made by him a considerable time before this accident as to how far a street car moved after its brakes were applied, and in permitting counsel for the street car company, while arguing the cause to the jury, to state to them, among other things: “Street cars do ring their bells; they are instructed to do that. It may be obnoxious to the people whose homes they,are passing, but it is the only safe thing for them to do. They do it when they pass my house.”

These presentments will be disposed of in the order given.

The first one, concerning the claim for an overwhelming preponderance of the evidence against the verdict, need not be decided, in view of the conclusion that the court did err to the prejudice of appellant in admitting the testimony complained of under the next two, since the evidence may not be the same upon another trial.

As concerns the latter two, we think the court should have, in the circumstances, excluded both the challenged testimony of Mrs. Martini and Mr. McLin.

The injured child’s mother, a negro woman named Parilee Long, was not a party to the suit, which was brought and prosecuted by its father as next friend, and while a witness on the stand was neither asked, if she ever talked to Mrs. Martini at all nor with reference to any conversation had with her concerning this child or this case; no predicate of any sort, therefore, had been laid for impeaching her as a witness by reason of anything which may have occurred ex curia between her and Mrs. Martini. Neff v. Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Ayres v. Duprey, 27 Tex. 594, 86 Am. Dec. 657; The Charles Morgan v. Kouns, 115 U. S. 69, 5 S. Ct. 1172, 29 L. Ed. 316; 28 R. C. L. 636,

After the child’s mother and other witnesses in its favor had given testimony tending to establish the fact of the collision, its having been caused by the negligence of the appel-lee’s operatives, and of its having proximately caused an epileptic condition then affecting the child, Mrs. Martini as a witness for the appellee, after first giving testimony tending-in purport to indicate that the suit itself was the result of malingering, was then, over strenuous objection on the part'of appellant’s counsel that it was hearsay, not binding upon the child, not based on any predicate for impeachment of its mother, irrelevant and immaterial, was permitted to further testify that the mother had told her the child was in the hospital from some disease, the “shots” they gave it having caused its affliction, and that the very day of the accident she had further told her the child wasn’t hurt, and then the witness added these further statements as to what had passed between her and the child’s mother: “She wanted me to testify that the child’s condition was caused by the accident, and I said I couldn’t do it because I had children of my own, and I would tell the truth; she wanted me to come to court and testify that the child was normal before the lick, but I told her I couldn’t do it because he wasn’t hit bad. He fell in front but he wasn’t badly hit; the next day she came in the store with the child, and he walked in and out, and the doctor came and he said there was nothing the matter with the child, so she told me.”

It clearly appears from the colloquy between counsel when the stated objections were made to the admission of all this testimony, not only that it was not admissible for that purpose because, as indicated, no predicate had been laid for it, but also that it was not offered for the purpose of impeaching the child’s mother, but solely on the theory that the child as a litigant was bound by these statements to Mrs. Martini as admissions on the part of its mother:

“Q. What did she want you to testify to?
“Mr. Harris: That is hearsay.
“Mr. Wigley: It is by the most interested party in this case.
“Mr. Harris: She is not a party to the suit.
“Mr. Wigley: It is the mother of this child, who is clearly responsible for what may have been done or said to make out this ease.”

These quoted express declarations of the purpose for which the statements were offered negative any other and rebut any suggestion that such declarations were, or could have been, receivable as indicating the interest of the mother in the case.

In the first place, they were not receivable as admissions of the mother against the interest of the child. Galveston H. & H. Ry. Co. v. Moore, 59 Tex. 64, 46 Am. Rep. 265; Gersdorff v. Torres (Tex. Com. App.) 293 S. W. 560; Houston & T. C. Ry. Co. v. Bradley, 45 Tex. 171; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Neff v. Cameron, 213 Mo. 350, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Phillips v. Herndon, 78 Tex. 378, 14 S. W. 857, 22 Am. St. Rep. 59; White v. Joyce, 158 U. S. 128, 15 S. Ct. 788, 39 L. Ed. 921; 14 R. C. L. 291; 28 R. C. L. 636; 22 C. J. 363, 407; 31 C. J. 1143; 32 C. J. 777.

In the next place, the appellee having thus offered the testimony as admissions of the mother binding on the child, and objection having been made to it on that ground, it was error to admit it at all, under the rule as stated by Wigmore on Evidence, § 18, as follows: “If several facts are included in the offer, some admissible and others inadmissible, then the whole (if properly objected to) is inadmissible; in other words, it is for the proponent to sever the good and the bad parts. Similarly, an offer of a fact for two purposes is erroneous if the fact is inadmissible for one of the purposes, though it would have been admissible for the other if offered for that alone. An offer of a fact for an inadmissible purpose A is properly excluded, though the same fact would have been admissible for purpose B. Conversely, an offer of a fact for purpose B is properly admitted, even though the same fact would have been inadmissible if offered for purpose A; this follows from the .doctrine of multiple admissibility.”

To conjecture that, in the setting given, its effect was not only potentially but very probably to the nth degree prejudicial — that is, that it carried an imputation from a white woman that the negro child’s whole case had been a frame-up, with its negro mother the chief compurgator — would be like undertaking to demonstrate the obvious. Bain Peanut Company of Texas v. Pinson (Tex. Com. App.) 294 S. W. 536; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Britain v. Rice (Tex. Civ. App.) 183 S. W. 84.

The witness McLin, after merely stating that he had participated within the three or four years prior thereto in making a test to determine the distance within which it takes to stop one of these one-man air-brake ears moving at a certain speed on a certain kind of track, was asked what distance “was found to be required to stop one of these cars moving 12 miles an hour, with good brakes, on a dry, level track, with an emergency application of air,” answered “32 feetin making that statement, he admitted that such a distance depends upon the condition of the track, and that he did not know what effect sand on the track at the time, or any other speed, would have upon it, saying “there is a variation according to the brakes, but I don’t know what it would be.”

These declarations were received without even an approximate showing, as to the exact time or place of the test, whether it was in winter or summer, whether the size or the weight of the car was comparable with that here involved, or whether the car tested was loaded or empty, or whether any of the other contributing conditions were similar to those obtaining in this instance. Further, no witness fixed the speed of this car at 12 miles per hour — that at which the test Mr. McLin so participated in was had. Further, the McLin test took place on a level track without sand on it, while here the accident happened on an upgrade track that was very sandy, and the car itself was loaded with the noon-hour crowd on it. The evidence showed sharp issues between the witnesses here both as to the speed of this car, which was variously placed at 8, 10, or 15 miles per hour or. better, while the distance as to how far it ran after the emergency air brakes were applied varied from 2 or 4 feet to all the way across Eleventh street.

Under our authorities, as against the objections made on that account, this testimony as to the test so participated in by Mr. McLin was inadmissible, in the absence of a showing upon appellee’s part that the material and contributing facts appertaining thereto were at least similar to the conditions prevailing at the time of this accident. 10 R. O. L. 1002, par. 190; 17 Texas Jr. 401, 402, par. 142, and cited cases in footnotes 16, 17; Texas & P. Ry. Co. v. Graham & Price (Tex. Civ. App.) 174 S. W. 297; Harris v. State, 62 Tex. Cr. R. 235, 137 S. W. 373; Houston & T. C. Ry. Co. v. Ramsey, 43 Tex. Civ. App. 603, 97 S. W. 1067; Price v. Charles Warner Co. (1899) 1 Pennewill (Del.) 462, 42 A. 699; Hisler v. State (1906) 52 Fla. 30, 42 So. 692.

The challenged argument of appellee’s counsel was improper and harmful, because the statements made were not' based upon the evidence, hence constituted testimony upon counsel’s part, and had a direct bearing on vital issues in the case. Although objected to on that ground at the time, the court' refused on appellant’s request to instruct the jury not to consider the remarks, thus magnifying their importance in the minds of the jury, and making the error of counsel that of the court. Gulf, C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583; Chicago, R. I. & T. Ry. Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331; Bruyere v. Liberty Nat. Bank of Waco (Tex. Civ. App.) 262 S. W. 844; Missouri, K. & T. Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; Dallas Ry. & Terminal Co. v. Moore (Tex. Civ. App.) 52 S.W.(2d) 104; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435; Dallas Ry. & Terminal Co. v. Smith (Tex. Civ. App.) 42 S.W.(2d) 794; Bell v. Blackwell. (Tex. Com. App.) 283 S. W. 765: Robbins v. Wynne (Tex. Com. App.) 44 S.W.(2d) 946.

To make plain the rationale of this ruling, as well as the applicability of the authorities cited as in support of it, from the state of the record:

It is true the undisputed evidence was to the effect that the bell on the street car had been ringing on its approach toward Eleventh street from near the middle of the block it was running along, and that the location of appellee’s counsel’s house was not given; but these very conditions disclose the harm that lurked in thus reaching out from a clear sky and supplying the testimony the jury otherwise lacked, “that they always rang the bell, were instructed to do so, and did so when they passed my house,” thereby very possibly leading the jury to conclude that the motorman was not ringing the bell' because of the child’s presence near the track, or because of a purpose of his own to cross the intersection without slackening his speed, since they found in appellee’s favor on the closely contested issues of discovered peril, negligent speed, and unavoidable accident, when, without this new information, the proof — inclusive of that from the conductor himself— strongly tended to indicate that he had seen the child all the time from about the middle of the block back, or in ample time to have stopped or slowed down on reaching the crossing, but that, instead of doing either, he so clanged the bell in preference, intending to take the intersection on the run to make up for the extra stops he had ahead at that noon-day time.

Por the errors pointed out, the judgment' has been reversed and the cause remanded, with .Justice LANE dissenting,

Reversed and remanded.

LANE, J., dissenting.

On Motion for Rehearing.

GRAVES, Justice.

After painstaking reconsideration of the cause, the full court — Justice LANE having withdrawn his originally noted intention to dissent and concurred in the opinion then delivered as well as in this one — has overruled the motion for rehearing, but in deference to the earnest contention of the able counsel for appellee that our former opinion inaccurately reflected the facts shown in the record, especially with reference to the objections made to the testimony of Mrs. Martini, and to the conditions under which the accident in this instance happened, this addendum is made to what was before written:

Mrs. Martini made five statements with reference to what the child’s mother told her. The first, appearing at page 193 of the statement of facts, is this: “The child was absolutely unnormal. He was a small child, and if he was going one way his head would turn the other way and his eyes were crossed, and he was deformed, and the mother told me the child was in the hospital with some disease, and the shots they gave him caused the affliction. The mother told me that.”

No.objection was made to this at that particular time, but since it was per se incompetent as being hearsay and was offered against a five-year old child, it would appear to have been the court’s duty to notice and exclude it anyway. Cartwright v. Wise, 14 Ill. 417; Turner v. Jenkins, 79 Ill. 228; Kingsbury v. Buckner, 134 U. S. 650, 10 S. Ct. 638, 33 L. Ed. 1047; Taylor v. Rowland, 26 Tex. 293; Ann. Cas. 1913B, 443 note; Glade Coal Mining Co. v. Harris, 65 W. Va. 152, 63 S. E. 873; 31 C. J. (N. S.), Infants, pars. 254, 304, and 317. .

Her second statement, appearing on page 194 of the statement of facts, given on cross-examination in response to the question, “Have you talked to the boy any since then?” was as follows: “Oh, yes, a lot, and I talked to the mother that very day, and the mother said the child wasn’t hurt.”

This was clearly not responsive to the question asked, and while no motion was made at the timé to strike it out, the court’s duty with reference to it, under the authorities cited supra, would be the same as with reference to the preceding one.

The third and fourth statements, appearing at pages 198 et seq. of the statement of facts, with accompanying proceedings, were these:

“Q. (By Mr. Wigley): What did she want you to testify to?
“Mr. Harris: That is hearsay.
“Mr. Wigley: It is by the most interested party in this case.
“Mr. Harris: She is not a party to the suit.
“Mr. Wigley: It is the mother of this child, who is clearly responsible for what may have been done, or said, to make out this case.
“Mr. Harris: She is not a party to this suit, and anything she may have said would be hearsay. I have not cross-examined her in reference to any statement she made, if any, and it is not binding on the child.
“Court: Overruled.
“Mr. Harris: Exception.
“Q. (By Mr. Wigley): What did she want you to testify to? What did she tell you that she wanted you to testify to? A. She wanted me to testify that the child’s condition was caused by the accident, and I said I couldn’t do it because I had children of my own, and I would tell the truth.
“<⅞. Hid she want you to testify to the con-ditioh of the child before the accident?
“Mr. Harris: Same objection, and it is immaterial, has no bearing on the case, and the mother is not a party to the suit.
“Court: Overruled.
“Mr. Harris: Exception.
“A. She wanted me to come to the court and testify that the child was normal before the lick, but I told her I couldn’t do it because he wasn’t hit bad. He fell in front but he wasn’t badly hit.”

Our former recitation that this matter was objected to, among other reasons, because no ground for impeachment of the mother had been laid, was in that respect erroneous, that particular objection only not having been offered ; but that inaccuracy does not affect the substance of the holding made in reference to the matter, especially since the context of the record as a whole not only indisputably shows that no such predicate had been laid, but the appellee’s counsel expressly disclaims having ottered the testimony for any such purpose or implication.

The fifth statement, shown on page 199 of the statement of facts, is as follows: “The same, and the next day she came in the store with the child, and he walked in and out, and the doctor came and he said there was nothing the matter with the child, so she told me.”

Again no special objection, to this wds made when it was offered, but the objections formerly noted — with the exception herein stated — had just been made to it and overruled, hence it was unnecessary to repeat them when it was again ottered. Jones on Evidence, Civil Cases (3d Ed.) § 894; Fort Worth & Denver C. Ry. Co. v. Thompson, 75 Tex. 501, 12 S. W. 742, 743.

As concerns the statements in the former opinion that “no witness fixed the speed of this car at 12 miles per hour,” and “here the accident happened on an upgrade'track that was very sandy,” no error of substance appears; the only witness by whose testimony it is claimed this car was moving at twelve miles an hour, while admitting that she had stated its speed was twelve miles at the first trial of the cause, declined on the trial from which this appeal proceeds to testify that it was going over ten miles per hour.

The pictures of the scene of the accident not only show that the intersection of the streets where it happened was very sandy when they were taken, but different witnesses testified that the same conditions as there shown prevailed at the time of the accident. Furthermore, the appellee’s witness Mr. Greenwalt, a passenger on the car at the time of the accident, when asked on cross-examination at this trial if he had not on the former trial testified that he had not been conscious of the slowing up of the car until the emergency brake was applied, testified as follows: “I don’t think so. I protested at the form of that question at the time, saying that the speed was being reduced, either by an ordinary application of the brake, or else hy the fact that there is an upgrade going into that hloolc all the way from 13th Street.” The italicizing, which furnishes direct support for our former statement on this feature, is our own.

It is not felt that any further discussion as to the argument of counsel before held prejudicial be here appended, since on the reconsideration that disposition of it has been adhered to as being in all material respects based upon what actually took place.

As indicated, the motion has been overruled.

Overruled.