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MISLEADING INSTRUC

TIONS CURE BY OTHER INSTRUCTIONS.

Contention that from special instruction given jury might have believed that railroad company owed plaintiff employé no duty, even after discovering his peril, is not tenable, in view of instruction that duty of operators of train to use ordinary care was not diminished or dispensed with because of the fact that plaintiff might have been wrongfully upon the track.

[9, 10] This conclusion requires an affirm- | 5. TRIAL 296(3) ance of the judgment of the court below in the main. In other assignments presented by appellants, complaint is made of that portion of the judgment commanding the defendant Monk to notify appellee of the filing of complaints in the corporation court. think the objection to this part of the judgment, on the ground that it is not made the duty of the judge by any statute or ordinance to give such notice, is valid and must be sustained. Another objection to the judgment is that it forbids the city attorney from prosecuting cases covered by the state law when the district attorney is disqualified or refuses to prosecute. If the judgment can be so construed it is manifestly erroneous in this particular. We think the judgment should be reformed in the respects last mentioned, and as so reformed should be affirmed, and it has been so ordered.

Reformed and affirmed.

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FRICK v. INTERNATIONAL & G. N. RY.
CO. et al. (No. 6082.)

(Court of Civil Appeals of Texas. San Anto-
nio. Nov. 20, 1918. Rehearing De-
nied Dec. 18, 1918.)

1. MASTER AND SERVANT 89(3)-INJURY ON TRACK-TRESPASSER.

Employé of railroad company, injured while riding upon track in a motorcycle by invitation of another employé after working hours, motorcycle being run down by freight train, held a "trespasser."

6. APPEAL AND ERROR 213-FAILURE TO SUBMIT ISSUE-REVIEW.

Contention that court erred in overruling appellant's exception to main charge cannot be sustained, where bill of exception discloses that objection was to omission alone, since, under Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, failure to submit an issue is not ground for reversal, unless submission was requested in writing.

7. EVIDENCE 471(24)-QUESTION CALLING FOR CONJECTURAL CONCLUSION.

Question as to what might have happened if something had been done, which witness testified bad not been done, called for a conjectural conclusion.

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Suit by Emil H. Frick against the International & Great Northern Railway Company and its receivers. The cause was tried with a jury upon special issues. The jury answer2. APPEAL AND ERROR 1067 - FAILURE TO ed the issues against plaintiff, in accordance DEFINE TERMS-HARMLESS ERROR.

In suit by employé to recover for injuries sustained while riding upon track in a motorcycle by invitation of another employé after working hours, instruction that plaintiff was a "trespasser," although quoted term was not defined, held without injury to plaintiff.

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Instruction that railroad company owed a trespasser no duty until his position of peril was discovered was erroneous.

4. APPEAL AND ERROR 1068(1) - ERRONEOUS INSTRUCTION-HARMLESS ERROor.

Instruction that plaintiff was a trespasser on track, and that defendant railroad owed him no duty until his position of peril was discovered, although erroneous, and not in compliance with Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a, as to definition of terms, cannot be said to have contributed to result where jury found in answer to only issue submitted that operators of train did not discover plaintiff's peril in time to have prevented injury.

with which judgment was rendered, and plaintiff appeals. Affirmed.

Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellant.

John M. King, of Houston, and F. C. Davis and Marshall Eskridge, both of San Antonio, for appellees.

SWEARINGEN, J. This is a suit by Emil H. Frick, the appellant, against the International & Great Northern Railway Company and its receivers, James A. Baker, and Cecil A. Lyons, to recover damages for personal injuries. The cause was tried with a jury upon special issues. The jury answered the issues against appellant, in accordance with which judgment was rendered.

Appellant's petition alleged that he was an employé of the appellee railway company, and upon November 5, 1913, he accepted an invitation from another employé of the railway company, Jack Meyers, to accompany

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

him in the use of the railway track of the company with a motorcycle belonging to the railway company, but under the care and custody of Jack Meyers. It was alleged that the company's mechanic, an official having

control over the said car and the men there

on, was present, saw and consented to the trip; that when returning to San Antonio the said motorcycle was run down by one of the company's freight trains while upon a bridge about eight miles from San Antonio, and appellant was thrown from the bridge and seriously and permanently injured; that the said collision and injuries were caused by the negligence of the railway company's employés in operating said train at a negligent rate of speed and in failing to give a timely signal of any kind of the approach of the train; that the company's employés in charge of said train were also negligent in failing to stop or slacken the speed of the train, and in failing to give a timely warning signal after the appellant's position of peril was discovered.

"(1) Did the defendant's engineer or fireman in charge of the locomotive discover the plaintiff's position of peril in time, by the exercise of ordinary care, to have sounded a warning of the approaching train that would have prevented the injury to plaintiff?

"(2) Did the engineer and fireman, after such

discovery, if any, fail to give such timely warning as would have prevented the injury to plaintiff?

"(3) Did the engineer or fireman operating the locomotive discover the plaintiff's position of peril in time, with the means at hand, consistent with the safety of the train, to have so slackened the speed of the train as to have prevented the injury to plaintiff ?"

[1, 2] The first six assignments assail the action of the trial court in giving, at the request of appellee, the following special in

struction:

"You are instructed that the plaintiff at the time of the collision and injury complained of was a trespasser on the track of the defendant, and that the defendant owed him no duty until his position of peril was discovered."

It is urged that this special instruction is fallacious in two particulars, viz.: That it was error for the court to tell the jury that appellant was a trespasser on the railway company's track, and that it was also error to tell the jury that the railway company owed appellant no duty until his position of peril was discovered.

The railway company replied with a general denial and a plea of contributory negligence on the part of appellant. The answer averred that the plaintiff was upon a pleasure trip of his own; was not then in the course of his employment with the company, and that appellant was not upon said motorcycle and track by consent from any one having authority over said car, and that the employés in charge of the train owed no duty of lookout at the place where the col-ing after work hours for his own pleasure

discover

The fact is that appellant was rabbit shoot

and was not in the performance of any duty for the railway company. He was using the

main line of track from Laredo to San Antonio

at a time when he knew the track would be used by the company's train. He was not invited or licensed to so use the track for his

personal pleasure by any one shown to have authority to give the permission to so use the track.

yond question a trespasser. I. & G. N. Ry.

Under the facts appellant was be

lision occurred, and did not the plaintiff upon the track in time to have prevented injury to him by using the means at hand. The answer further averred that appellant went out upon the line of the railway company without the knowledge or consent of any official or employé of said railway company having control over the line, and that no notice was or could have been given to the employés in charge of the train v. Cock, 68 Tex. 713, 5 S. W. 635, 2 Am. St. which came in contact with the motorcycle. Rep. 521; T. & P. Ry. v. Black, 87 Tex. 161, The company answered, further, that the ap- 27 S. W. 118. Counsel for appellant further pellant knew at the time he started on his insist that the question of whether or not trip that the train which collided with him appellant was a trespasser was, by the pleadwas out and was due at the point of the colli- ing and evidence, an issue to be determined sion about the time of the accident, and also by the jury. However, no such issue was knew that a train of the company was likely requested by appellant. "The failure to subto pass over the line at any time, and answer- mit any issue shall not be deemed a ground ed that appellant just prior to the accident for reversal of the judgment upon appeal, stopped the motorcycle on the company's rail- | * * road track, and indulged in the pleasure of quested in writing by the party complaining shooting wild game, left the motorcycle on of the judgment." Vernon's Sayles' Rev. the track, went to gather up the game, and Civ. St. art. 1985. then started the motorcycle with a loud noise The further contention is made that "tresand failed to look or listen for an approach- passer" means a lawbreaker, and the use of ing train. The railway company averred that the term applied by the court tended to disthis was extrahazardous, because immediate- credit appellant's testimony upon the issue ly south of the bridge there was a steep grade of discovered peril submitted to the jury. and a decided curve, all of which was known Appellant could have had the court define to appellant. the word "trespasser" to mean one who was The only issues submitted were the fol- upon the property of another in pursuit of lowing: his own purpose without the permission of

unless its submission has been re

the owner. No request was made for a defi- |proximate cause of the injury and precluded nition of the term. Moreover, the record a recovery. This holding is directly in acdoes not disclose that appellant testified that cord with the opinion of Associate Justice his perilous position was discovered by the Denman in the Watkins Case, wherein it is employés in charge of appellee's train. said:

The special requested instruction does not explain any term or give any rule of law to aid the jury in determining any of the issues submitted. It is entirely irrelevant to those issues, but we are not able to say that any injury was caused to appellant by reason of this irrelevant, though correct, statement of a fact.

"If such circumstances show that the party injured was a trespasser at the time of the injury, the issue of contributory negli gence is, as a general rule, established as a matter of law; but not so in all cases." T. & P. Ry. Co. v. Watkins, 88 Tex. 24, 29 S. W. 234.

[4, 5] The special instruction made an erroneous statement of the law, and the in

[3] The instruction that the railway company owed a trespasser no duty until his posi-struction was not such explanation and defition of peril was discovered is error, as contended by counsel for appellant. In the case of Texas & Pacific Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232, Associate Justice Denman, writing the. opinion for the Supreme

Court, stated:

to

"It is often said that a railroad owes no duty a trespasser. This doctrine has

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never been adopted in this state, but has been expressly repudiated."

Then he cites Railway v. Sympkins, 54 Tex. 618, 38 Am. Rep. 632, Railway v. Hewitt, 67 Tex. 479, 3 S. W. 705, 60 Am. Rep. 32, and Artusy v. Railway, 73 Tex. 193, 11 S. W. 177. Associate Justice Denman then states the true rule:

"That it is the duty of the servants of the railroad company operating its trains to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company." Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

This rule has been expressly stated in many Texas decisions, some of which are the following cases: Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. 1126; Railway v. Hammer, 34 Tex. Civ. App. 354, 78 S. W. 708; Railway v. Watts, 173 S. W. 909; Railway v. Hewitt, 67 Tex. 473, 3 S. W. 708, 60 Am. Rep. 32; Railway v. Huegle, 158 S. W. 197; Railway v. O'Donnell, 58 Tex. 27; Railway v. Davis, 110 S. W. 939; 33 Cyc. 786.

The cases cited by counsel for appellee do not announce a contrary rule and are in no respect in conflict with the opinion in the Watkins Case.

In Texas Midland Railway Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137, M., K & T. Ry. v. Malone, 102 Tex. 269, 115 S. W. 1158, II. & T. C. v. Richards, 59 Tex. 373, as well as in Over v. M., K. & T. Ry., 73 S. W. 535, Missouri, K. & T. Ry. v. Cowles, 96 Tex. 24, 67 S. W. 1078, 69 S. W. 541, recovery was denied for the injuries sued for because according to the facts involved in those cases it was determined that the injured party was guilty of contributory negligence, which was found as a matter of law to have been the

nition of legal terms as was necessary to enable the jury to properly pass upon and render a verdict on such issues as were submitted. Article 1984a. But we cannot say that the irrelevant charge, erroneous though it was, probably contributed to the result reach-. ed by the jury. The jury found in answer to the only issue submitted to it that the operators of the train in collision did not discover appellant's position of peril in time to have prevented the injury. The assailed instruction had no bearing upon this issue. possible inference that the jury might have believed that the railroad company owed appellant no duty even after discovery of the peril is not tenable, in view of the special instruction requested by appellant and given by the court, which is as follows:

The

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The first six assignments are overruled. The foregoing also disposes of the ninth and tenth assignments.

[6] The seventh assignment is that the court erred in overruling the appellant's exception to the main charge. Said charge was excepted to because it failed to submit to the jury the issues of defendant's negligence in running its train at an excessive rate of speed, and in failing to give proper warning, and in negligently running the appellant down. The bill of exception upon which this proceeding is brought before us discloses that counsel only objected to the omission. "But the failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal unless its submission has been requested in writing by the party complaining of the judgment." Vernon's Sayles' Tex. Civ. St. art. 1985. This statutory requirement has not been observed.

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We overrule the seventh assignment.

[7, 8] We overrule the eighth assignment, complaining of the exclusion of testimony. The form of the question excluded upon objec

tion called for a conclusion of the witness as to what might have occurred if something had been done, which the witness had testified was not done. The question called for a conjectural conclusion. All facts that might have been elicited by the question if in proper form were testified to by the witness without objection, which refutes the idea that any injury could have been done to appellant by the exclusion of the question and probable answer.

The judgment is affirmed.

HOLMES et ux. v. LONG. (No. 868.)

(Court of Civil Appeals of Texas. El Paso.
Nov. 14, 1918. Rehearing Denied
Dec. 18, 1918.)

gas at less cost than was usually produced for towns and villages, but that in fact it cost more; that he gave notice of the failure of the consideration to the payee, and demanded the cancellation of the notes; that it was agreed to, but, the notes not being present, the payee's manager agreed to obtain them and return them to defendant, which was not done; that thereafter they were assigned to the plaintiff, with full knowledge upon his part of the fraud and failure of consideration.

The cause was submitted upon special issues, and, upon the verdict of the jury, judgment was entered for the amount of notes for the plaintiff, from which this appeal is prosecuted.

[1] But one assignment of error is urged by appellant, viz.: "The court erred in rendering judgment for plaintiff." Appellees suggest that this assignment cannot be considered under the rules, because it was not contained in the motion for new trial filed, but was filed after the motion was overruled. Upon the point, we cite Hess & Skinner En

1. APPEAL AND ERROR 719(8) ASSIGN MENTS OF ERROR-FUNDAMENTAL ERROR. Where a judgment does not conform to the verdict, it presents fundamental error, which the appellate court will review without assign-gineering Co. v. Turney et al. (Sup.) 203 S. W.

ment.

2. PRINCIPAL AND AGENT ~177(3) KNOWLEDGE OF AGENT IMPUTATION TO PRINCIPAL.

Where the agent of a purchaser of notes, as attorney for the payee, knew of the failure of consideration, such knowledge is imputable to the purchaser, and he cannot recover as a bona fide purchaser without notice.

593, but without in any wise holding that it was decisive of the question under the facts presented by this record, because the case cited was tried without a jury and the instant case with a jury. But we conclude that, since the judgment in this case does not conform to the verdict of the jury, it presents fundamental error, which requires this court to review the case. Armstrong v. Hix, 107

Appeal from El Paso County Court, at Law; Tex. 194, 175 S. W. 430. W. P. Brady, Judge.

Action by H. W. Long against George M. Holmes and wife. From a judgment for plaintiff, defendants appeal. Reversed and rendered.

[2] The proposition urged is that, under the verdict of the jury, the judgment should have been for the defendant. As applicable to this question the jury found:

"That the Pomona Valley Investment ComF. G. Morris, of El Paso, for appellants. pany received the money paid by Long for the Atlas Jones, of San Antonio, Claude Law-notes. That the said company through misreprence, of El Paso, and R. M. Turner, for ap-resentations induced the defendant to execute pellee.

HARPER, C. J. This suit was filed by appellee on 15 promissory notes, executed by appellants, payable to Pomona Valley Investment Company. Plaintiff alleged that"Before maturity, the said company indorsed the said notes in blank and delivered them to M. A. Fleming, for plaintiff; the said Fleming being the agent of plaintiff in purchasing said notes for plaintiff."

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the notes sued on. That Fleming had information or belief when he purchased the notes for Long that defendant claimed that they were caused to be executed through false representations. That plaintiff or his attorney, Fleming, before the notes were purchased by Long, had information which should have put a man of ordinary prudence upon inquiry as to whether a defense or failure of consideration might be claimed as to said notes, and that, having such information, if it had been followed up by the use of ordinary diligence, they would have discovered the facts. * 本 ** That Gentry or his attorney, Fleming, agreed to canThe defendant pleaded failure of consider- cel the notes sued on before the sale to Long. ation and that they were obtained by false * 申 That Gentry was the manager of the and fraudulent misrepresentations, in that said company, and that the company ratified they were given for deferred payments in the sale of the notes and received the money." the purchase from the company, payee, of the right to make a certain gas in the state of Arizona; that it was falsely represented

The exact point urged is:

"The jury having found that M. A. Fleming, to the defendant Holmes that the gas tanks.attorney for plaintiff, through whom plaintiff or plants under the method would produce purchased the notes sued on, knew of the de

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

fense and agreed cancellation of the notes sued | sented, has not been prepared in accordance on, when he purchased them for plaintiff, and it with the rules. appearing that said Fleming was general at

torney for plaintiff in the investment of his 2. HUSBAND AND WIFE 119(1)-DEED TO money, when said Fleming learned of the de- MARRIED WOMAN.

fense and cancellation of said notes, and knew Where realty was deeded to a married wo-
of said defense when he was making the pur-man, legal title to the property became vested
chase, the notice of the plaintiff's attorney in her.
must, under the circumstances of this case, be

imputed to the plaintiff, and judgment should 3. HUSBAND AND WIFE 132
have been rendered for defendants."
OF WIFE EVIDENCE.

The plaintiff, as will be noted in pleadings quoted, pleaded that Fleming was the agent of the plaintiff at the time be bought the notes, and Fleming, testifying for plaintiff, said he was the attorney for plaintiff, Long, at the time of the purchase. It is also noted that Fleming was at the same time, and for all the time of the transactions for which the notes were given, the attorney of the payee company. The rule applicable here is clearly stated in Allen v. Garrison, 92 Tex. 546, 50 S. W. 335:

"Where an agent has effected a transaction for his principal by fraudulent practices, the latter cannot exempt himself from the consequences of such conduct by asserting that he had no knowledge of the fraud."

The same principle was declared to be the law in Bank v. Cruger, 91 Tex. 446, 44 S. W.

278.

By the finding of the jury that Fleming knew that the original payee had agreed to cancel the notes because of the failure of consideration, and by the further fact that plaintiff alleged Fleming to be his agent at the time of the purchase of the notes, although the plaintiff had no knowledge of the fraud, so found by the jury, such a privity between them arose as to charge the plaintiff with the consequences of the acts of his agent, Fleming, as that the former took the notes with all the defenses to which they were subject in the hands of the original payee, and he cannot exempt himself from the consequences of the conduct of his agent by asserting that he had no knowledge of the fraud.

The cause must therefore be reversed, and judgment here rendered for appellant. Reversed and rendered.

JOHNSON et al. v. JOHNSON. (No. 5968.)
(Court of Civil Appeals of Texas. Austin.
Nov. 9, 1918. Rehearing Denied
Dec. 18, 1918.)

1. APPEAL AND ERROR 756-APPELLANT's
BRIEF.

PROPERTY

wife of decedent claiming through her son In trespass to try title by divorced first against her husband's second wife, such second wife, defendant, had the right to introduce testimony tending to show that her husband caused deed of the land to be made to her because he intended it as a gift.

4. HUSBAND AND WIFE 119(3)-DEED TO WIFE-SEPARATE PROPERTY.

Where husband caused deed of land to be

made to his wife intending it as a gift, it be came her separate property, though the deed

did not state on its face that title was to be so vested in the wife.

5. HUSBAND AND WIFE 121 ACQUISITION OF LAND BY WIFE-FURNISHING CONSIDERATION.

A wife acquired land as her separate estate if the consideration used in paying for the property was her separate estate.

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6. HUSBAND AND WIFE 132 PROPERTY OF WIFE EVIDENCE.

In trespass to try title by divorced first wife of decedent, claiming through her son against second wife, defendant second wife, under the pleadings, held entitled to show that deed which was made to her was intended for her separate use and benefit; testimony being admissible under general denial and plea of not guilty.

7. HUSBAND AND WIFE 273(2)-COMMUNITY PROPERTY.

In trespass to try title by divorced first wife of decedent, claiming through her son, against second wife, where by judgment court did not attempt to reform deed to second wife, it was not necessary that grantors should have been made parties.

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If land conveyed to second wife was community property of second marriage, a divorced first wife claiming in right of son after his Appellant's brief, which does not contain all father's death was owner of undivided half inthat is necessary to enable Court of Civil Ap-terest, subject to the second wife's right to use peals to decide some questions sought to be pre- property as her homestead.

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

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