as his line, would own the fee in the land used for sidewalk, and that designated merely as "private parking," and then the fee to the middle of the street. We conclude that the court erred in holding that lot 6 has a frontage on Queensborough Court of only 98 feet. The representation alleged to have been made by appellant is literally true. It follows that no judgment can be sustained on the ground that fraud was perpetrated by means of such representation. The conclusion announced by us is derived, as a matter of law, from the deed and the map made part thereof. If such instruments left the intent vague as to what was conveyed, the verbal testimony of those who were instrumental in laying out and platting the addition supports the construction adopted by us. Even the defendant in error believes that he became entitled under the deed to some kind of estate or rights in the private parking space. His theory was that the sidewalk and private parking was not a part of the lot, and he expressed the opinion that he did not get 114 feet, but also stated that if he did he could not use it. He also said: "As to making no claim to it, I wouldn't want to allow anybody to build a negro shanty there or anything of that kind; I think it belongs to the public. I think probably I own to the middle of the street, but I couldn't utilize it; couldn't handle it." In speaking of sales of lots by him in the same addition, defendant in error said: "In these deeds I sold by the lot and specified from the curb measurements. I can't recall if in these deeds I made I sold from the curb, but I am sure I sold this corner lot at one time; that I explained how it was. I explained that there were sixteen feet there in the curb and sidewalk, and explained how it was measured." There was no allegation that Roos represented the lot as containing 114 feet, exclusive of sidewalk space and private parking, nor did defendant in error testify to any such representation. Defendant in error did not allege that Roos knew appellee was laboring under the mistaken belief that the lot contained 114 feet, measuring from the sidewalk, and that he fraudulently concealed from appellee the fact that such belief was erroneous. Defendant in error made a mistake in his construction of what Roos meant by his statement, and would not have taken lot 6 at $60 per foot had he known that he was expected to allow for the 16 feet included in sidewalk and private parking; but this is not a case based on any allegation of mistake, but a suit for damages for fraud, and, as the representation relied upon is shown as a matter of law to have been literally true, the court erred in his conclusions of fact and judgment. motion for rehearing is set aside, and a rehearing granted upon said motion and the supplemental motion for rehearing; the judgment of affirmance heretofore entered in this cause is set aside, and judgment rendered in lieu thereof that the defendant in error take nothing by his suit, but that he recover all costs incurred in the trial court up to the trial of the cause, it not being clear when the taxes were paid, and that plaintiff in error recover of defendant in error the remainder of the costs incurred in the trial court as well as the costs of appeal. On Motion for Rehearing. De The defendant in error's motion for rehearing presents the contention, in substance, that by virtue of the acts of Summit Place Company, in making and filing for record the map, accompanied by the deed of dedication, the space designated for private parking and sidewalk became portions of the street, and that the right of the purchaser of lot 6 to use such sidewalk space and private parking space would be only such right as he has in common with the public. fendant in error does not appear to be entirely clear as to whether the parcel is a public park or part of the street. While the contention is urged, and frequently repeated, that it is a part of the street, he relies on the cases wherein it has been held that to lay out a town and designate a plat as "Park" will be held to constitute a dedication of such space as a public park, in the absence of anything to show a contrary intention. If this parcel was dedicated to the public as a park, the owner of every lot in Summit Place addition will be confronted with problems relating to ingress and egress and the control of what is to be planted in front of his residence. "In order to constitute a dedication of private property to public use, it must clearly appear that the owner intended to absolutely and irrevocably set apart the land for public use." Atlanta v. Railway, 56 Tex. Civ. App. 226, 120 S. W. 923. [8] The deed of dedication expressly states that all streets and alleys are thereby dedicated to the public generally, and especially to the city of San Antonio, subject to certain conditions therein named, one of which relates to poles, wires, sewers, water and gas mains, all of which are to be placed in the alleys. After the express dedication of the streets and alleys, appears the statement: "The red lines on map indicate public sidewalks, four feet wide, and the green shadings indicate private parking between the public sidewalk and the curbing along the streets." This statement does not constitute any express dedication, such as was made with reWe do not wish to be understood as ap- spect to the streets and alleys, but the mere proving the theory as to measure of damages designation of the sidewalk space as intendupon which this case was tried. ed for public sidewalks would doubtless be The order overruling plaintiff in error's sufficient, and it has so been considered by us, to constitute a dedication to the public of an easement in such space for sidewalk. The designation of a strip as "private parking" cannot be considered on the same footing as to lay out a town and mark a square or other parcel as "Park," in which case the intention would ordinarily be disclosed to make it a public park. We know of no clearer way to negative the idea that parking is to be public parking than to designate it as private parking. We have heretofore pointed out that the maker of the map, in indicating the width of lot 6 at 114 feet, took as parts of said lot the sidewalk space and the private parking space. This is proved conclusively by the fact that, unless we attribute such intention to the maker of the map, we must attribute to him the making of a map upon which the corner lots are laid out upon a different scale from the inside lots. [9] Of course, if the intention of the maker of the map was to include the sidewalk space and the private parking space as portions of the corner lots, such intention was adopted by Summit Place Company when it had the map recorded. was laid out would resolve the ambiguity against defendant in error's contention. This testimony was not contradicted except in so far as it contained statements to the effect that defendant in error participated in conferences resulting in the formation of the plan for laying out and selling the property. The extent of defendant in error's connection with the company is covered by the trial court's sixth finding of fact, copied in the original opinion. While it is true that Summit Place Company could not convey something it had already parted with, and if the map and deed of dedication showed clearly that lot 6 only had a front of 98 feet, the deed to defendant in error could not change that fact, under the testimony of Walker it appears that a general form of deed was prepared as a part of the plan for laying out and selling the addition, which form was to be used in all conveyances. This being true, the provisions of the deed in evidence cast light on the intent of the company with respect to the map and its accompanying instrument, and, as before pointed out, the deed treats the private parking as part of the lot, for it expressly provides that "no fence or coping shall be erected on any lot outside of the proposed sidewalk." As defendant in error has failed to prove the falsity of the representation that lot 6 contained 114 feet front on Queensborough Court, he cannot recover, for that is the only representation relied on in his pleading. Defendant in error's motion for rehearing is overruled. SHERRILL v. UNION LUMBER CO. (No. 390.) The cases cited by appellee in the motion do not aid in determining the question at issue. The instrument indorsed on the map does not state that the sidewalk space and the private parking space constitute parts of the street. On the contrary, the statement is made that the private parking lies between the sidewalk and the curbing along the streets. Of course lot 6 could have been made to extend only to the sidewalk, in which case, doubtless, a black line would have been drawn so as to clearly show its boundary, and the front line would have been marked "98" instead of "114." It is also clear that the company could make the lot include the sidewalk space and private parking space, subject to an easement in (Court of Civil Appeals of Texas. Beaumont. favor of the public for sidewalk, and restricNov. 29, 1918.) tions as to the use of the space designated as private parking. When the map and its 1. TRIAL 352(1)-FRAMING OF ISSUES. accompanying deed of dedication are con- An affirmative instruction held to sufficientsidered together, it clearly appears that Sum-ly present same issue as that requested, almit Place Company stipulated that lot 6 was though requested instruction was in the negative form. 114 feet wide; that such distance was obtained by treating the lot as extending to the street indicated on the map; that the lot was burdened with an easement in favor of the public for sidewalks; and restrictions concerning the use of that part between the sidewalk and curb, imposed for the purpose of enhancing the beauty and symmetry of the addition. If it could be held that there is such ambiguity as rendered it necessary to resort to circumstances attending the making of the map and its accompanying instrument, the uncontradicted testimony of Walker and Roos as to the plan on which the addition 2. TRIAL 203 (3), 350(1) — SUBMISSION OF ISSUES AFFIRMATIVE PRESENTATION. Where a case is submitted either under a general charge or upon special issues, a party issue raised by pleadings and evidence. is entitled to an affirmative presentation of an 3. CONTRACTS 108(2) WORKMEN'S COMCONTRACTS CONCERNING PENSATION ACT - Workmen's Compensation Act, pt. 1, § 7 (Ver- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes - 4. CONTRACTS 138(4) PARI DELICTO 5. NEW TRIAL 102(8)-NEWLY DISCOVER- Where the existence of evidence was known at the time of the trial, but not the whereabouts of the witness, and no continuance or postponement was requested, new trial on the ground of newly discovered evidence was properly refused, although great effort was made to find the witness before trial. 6. APPEAL AND ERROR 981-NEW TRIAL 99-DISCRETION OF COURT-REVIEW. Motions for new trial for newly discovered evidence are addressed to the sound discretion of the trial judge, and where denied appellate court will not reverse, except for clear abuse. lect from every married man on its pay roll $1.75, and from each single man 75 cents. It was alleged by the plaintiff that when he first entered the defendant's service, on January 1, 1914, and when later the amount of salary to be paid him was changed twice, as above stated, his contract and agreement with the defendant further was that said compensation above stated should not include the medical services or treatment which plaintiff might render to employés of defendant during their first week of injuries, and that it was also a part of the agreement and contract between plaintiff and defendant that plaintiff was to be allowed to engage in such other practice, including treatment of injured employés during their first week of injuries, as he might be called upon to perform, and which he would have to attend to; and that, for the medical services and attention which plaintiff might render to any injured employé of defendant during the first week of injury, he was to receive the fee paid therefor by the insurance company with which defendant might be carrying its risk, in accordance with the terms of the Workmen's Compensation Act of this state (Acts Appeal from District Court, Liberty Coun- 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. ty; J. Llewellyn, Judge. Action by E. A. Sherrill against the Union Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed. E. B. Pickett, Jr., of Liberty, for appellant. Huggins & Kayser, of Houston, and H. E. Marshall, of Liberty, for appellee. HIGHTOWER, JR., C. J. We adopt, as substantially correct, the following statement of the nature and result of this suit, as found in the brief of plaintiff in error, and which is concurred in by the defendant in error: This suit was filed by Dr. E. A. Sherrill, as plaintiff, against the Union Lumber Company, as defendant, for the sum of $1,753, plaintiff claiming that such sum was due him for medical treatment rendered to injured employés of the defendant company during the first week of their injuries, in accordance with the Workmen's Compensation Act of this state. The defendant, Union Lumber Company, operated a sawmill at Milvid, in Liberty county, and on January 1, 1914, the plaintiff entered its employ as a physician for a salary of $150 per month; and in August, 1914, his salary was reduced to $101.50; and on May 1, 1915, another change was made with respect to the cash compensation plaintiff was to receive, and from the last-named date plaintiff was to receive as cash compensation all the medical fees that should be collected by the defendant company from its employés, less $40, it being agreed and understood between plaintiff and defendant that the latter would col St. 1914, arts. 5246h to 5246zzzz). It was further alleged by plaintiff that, after he would render such medical services to injured employés during their first week of injuries, he would make up a monthly account or statement, and send same to the defendant for the purpose of having defendant collect the sums so due plaintiff from the insurance company which was liable for same, and then to place such collections to the credit of plaintiff on the ledger account which plaintiff had with defendant, and that while that course of dealing was followed the defendant did collect upon such account the sum of $1,753.50, which it refused to pay plaintiff. The defendant, Union Lumber Company, answered by general denial, and also, by exception and defensive plea, interposed the two-year statute of limitation to all of the items contained in plaintiff's petition for services rendered by plaintiff two years prior to the filing of this suit. The defendant also reconvened against plaintiff for the sum of $429.66, claiming that amount as a balance against plaintiff on account of cash and certain articles of value which defendant had furnished to plaintiff while he was in its employ. The case was tried with a jury, and was submitted upon one special issue, and, upon the jury's answer thereto, judgment was rendered that plaintiff should take nothing against defendant on his cause of action, and that the defendant should recover on its cross-action against plaintiff the sum of $429.66, with legal interest. Plaintiff's motion for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes new trial having been overruled, a writ of error was prosecuted by him to this court. [1] The first, second, and third assignments of error are grouped, and treated together, and they all relate to the action of the trial court regarding the one special issue submitted to the jury, and in refusing a special issue instead thereof requested by plaintiff in error. The special issue submitted by the court for the jury's answer was as follows: "Was it understood or agreed by and between Dr. Sherrill and the Union Lumber Company that he, Dr. Sherrill, should receive the fees due from the insurance company for treatment of injured employés for the first seven days? (Answer Yes or No.)" In the same connection the court told the jury that the burden of proof was upon the plaintiff to establish the affirmative of the above question by a preponderance of the evidence. "Was it understood and agreed by and between the plaintiff, Dr. E. A. Sherrill, and the defendant, Union Lumber Company, that the monthly compensation plaintiff was to be paid by defendant included the medical treatment or attention which plaintiff rendered to injured employés during the first seven days after injury? (Answer Yes or No.)" And in this connection the court was asked to instruct the jury that the burden of proof was upon the plaintiff to establish the negative of the above question by a preponderance of the evidence. Plaintiff in error in due time objected to the form of the issue as submitted by the court to the jury, which objection was overruled, and the action of the court in that respect excepted to, and the action of the court in declining to submit the special issue requested by plaintiff in error was also duly excepted to. The proposition found in plaintiff in error's brief under these assignments is as follows: "The court's charge should be so framed and expressed as to directly and clearly present the very issue raised by plaintiff's pleadings and having testimony to support it, and it is error to ignore such issue, and to fail to directly and clearly present the same, where the plaintiff has properly requested a special charge there on." To the question as submitted by the court to the jury, as above shown, the jury gave a negative answer. It is contended by plaintiff in error that there is a vast distinction between the issue as submitted by the court and that requested to be submitted by him, and that the issue made by plaintiff in error, according to his pleading and evidence, was not submitted to the jury at all, and also that the issue as submitted by the court really had no dispute in the evidence. After a very careful consideration of plaintiff in error's pleading, we have reached the conclusion that the special issue as submitted by the court to the jury embraced the very issue tendered by plaintiff in error's pleading, which was, in substance, that it was understood and agreed between plaintiff in error and defendant in error that the compensation which plaintiff in error was to be paid for his services in treating defendant's employés should not include the medical fees which should be paid by the insurance company carrying the risk on defendant in error's employés for services rendered by plaintiff in error to such employés during the first week of injuries to them. Indeed, plaintiff in error's pleading is not susceptible of any other construction. But it is contended by plaintiff in error, also, that the issue as made by his evidence was that there was no underfendant in error to the effect that he should standing or agreement between him and dereceive or have the fees that should be paid by the insurance company for services performed by him in treating employés during their first week of injuries, but that, on the he knew that he was entitled to such fees contrary, his evidence was to the effect that chargeable to the insurance company, as a matter of law, and that no contract or agreement about that matter was required or entered into between him and defendant in error. It is true that plaintiff in error testified on the trial, substantially, that there was no agreement or understanding between him and defendant in error to the effect that he should receive as part compensation the fees to be paid by the insurance company on account of services performed by him in treating injured employés during their first week of injuries; but he also positively testified, in substance, that at the time he entered the employ of defendant in error he was fully aware of the arrangement with reference to such fees that had been made by defendant in error with one Dr. Thomas, who was the physician at the mill, anad who was succeeded by plaintiff in error in that capacity; and that under the arrangement and contract between Dr. Thomas and defendant in error he, Dr. Thomas, in addition to the salary paid him by defendant in error, was to receive, and did receive, the fees paid by the insurance company carrying the risks of such employés; and he further testified, substantially, that it was understood and agreed between him and the defendant in error, at the time he entered its employ, that he was to have the same compensation for his services in treating such employés as was had and received by said Dr. Thomas. We are, therefore, of the opinion that plaintiff in error not only substantially alleged, but that, considering his evidence as a whole, he testified, substantially, that there was an agreement and understanding between him and defendant in error that he should have and receive the fees to be paid by the insurance company for services performed by him upon injured employés during the first week of injuries. If we are correct in this, then it follows that the issue submitted by the court to the jury was, in substance, not only the issue as tendered by plaintiff in error's pleading, but was also substantially the issue made by his evidence; and, the jury having determined that that issue should be answered in the negative, they could not consistently have given a negative answer to the question or issue which plaintiff in error requested the court to submit. Indeed, we are of the opinion that while the verbiage and form of the two issues are somewhat different, nevertheless, in substance they are practically the same. It may be that a very astute legal mind might be able to detect a shade of difference between the substance of the two issues, when considered in the light of the pleadings and the evidence, yet this court has been unable to detect such a difference, and we feel sure that ordinary minds, such as are presumed to be possessed by average jurors, would not, and could not, discover any difference between the issue as submitted by the court and that requested by plaintiff in error, and we feel sure that no injury resulted to plaintiff in error from the action of the court in submitting the issue as it did, or in refusing to submit the issue as requested by plaintiff in error. [2] In support of the proposition of plaintiff in error under these assignments, as above mentioned, a number of cases are cited, commencing with that of Wichita Falls Traction Co. v. Adams, 107 Tex. 612, 183 S. W. 156. In that case it was said, substantially, that in a jury trial, where the case is submitted under a general charge, a party is entitled to an affirmative presentation of an issue raised by the pleading and the evidence upon which he relies. We have no fault to find with the rule there announced, but, on the contrary, believe it to be a sound and just rule, and that it should be applied, not only in jury trials, where a case is submitted upon a general charge, but can see no reason why such rule should not also apply where the case is submitted upon special issues. This same principle was clearly announced by the Supreme Court of this state in Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058, and in Ry. Co. v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538. Therefore, it might be, and it is conceded, that the proposition of plaintiff in error, as above stated, announces a correct rule. But, from what we have said, it does not follow that plaintiff in error's assignments in this connection should be sustained, but, on the contrary that they should be overruled. By the fourth assignment of error it is complained that the trial court committed error because it refused to peremptorily instruct the jury to find in favor of plaintiff in error for the whole amount sued for by him, less the amount claimed by defendant in error on its plea in reconvention. [3, 4] This contention is based upon the theory entertained by plaintiff in error that if plaintiff in error and defendant in error in fact entered into an agreement or contract to the effect that the defendant in error should collect and receive the fees to be paid by the insurance company carrying the risks on the latter's employés, and which would otherwise belong to plaintiff in error, under the Workmen's Compensation Act, that then such contract was illegal, null and void, for the reason that it was against public policy, and that defendant in error could not, therefore, invoke the provisions of such contract as a defense to plaintiff in error's right of recovery in this case. It is the contention of plaintiff in error that the tendency of such contract of agreement, if made and the jury found, substantially, that it was made-was to trespass upon and injure the rights of workingmen generally, and to lessen the respect for, and confidence in the administration of, the Workmen's Compensation law of this state, and that, therefore, such contract urged in defense against plaintiff in error's right to recover the money here sued for should now be declared null and void. We have not the time to here present at length the argument of the energetic and able counsel of plaintiff in error bearing upon this contention, nor do we deem it necessary, or that it would be at all enlightening, to discuss the many decisions by the appellate courts of this and other states relating to contracts which have been held illegal or unenforceable because against sound public policy. No court, so far as we have been able to ascertain, has ever attempted to announce any iron-clad rule by which to determine whether a contract between parties should be held to be illegal or unenforceable on the ground of public policy, and it would be an endless labor to undertake to discuss, or even mention, the numerous cases in which contracts have been denounced or held unenforceable on that ground. In Cyc. vol. 9, p. 481, we find this expression: "It is not easy to give a precise definition of public policy. It is perhaps correct to say that public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be designated, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law. Where a contract belongs to this class it will be declared void, although in the particular instance no injury to the public may have resulted. In other words, its validity is determined by its general tendency at the time it is made, and, if this is opposed to the interests of the public, it will be invalid, even |