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(9, 10] This conclusion requires an affirm-5. TRIAL 296(3) — MISLEADING INSTRUCance of the judgment of the court below in TIONS-OURE BY OTHER INSTRUCTIONS. the main. In other assignments presented Contention that from special instruction by appellants, complaint is made of that por- given jury might have believed that railroad tion of the judgment commanding the de- company owed plaintiff employé no duty, even fendant Monk to notify appellee of the filing

after discovering his peril, is not tenable, in of complaints in the corporation court. We

view of instruction that duty of operators of

train to use ordinary care was not diminished think the objection to this part of the judg

or dispensed with because of the fact that ment, on the ground that it is not made the

plaintiff might have been wrongfully upon the duty of the judge by any statute or ordinance track. to give such notice, is valid and must be sus

6. APPEAL AND ERROR 213-FAILUBE TO tained. Another objection to the judgment

SUBMIT ISSUE-REVIEW. is that it forbids the city attorney from pros

Contention that court erred in overruling ecuting cases covered by the state law when

appellant's exception to main charge cannot be the district attorney is disqualified or refuses sustained. where bill of exception discloses to prosecute. If the judgment can be so con- that objection was to omission alone, since, unstrued it is manifestly erroneous in this par- der Vernon's Sayles' Ann. Civ. St. 1914, art. ticular. We think the judgment should be 1985, failure to submit an issue is not ground reformed in the respects last mentioned, and for reversal, unless submission was requested as so reformed should be affirmed, and it has | in writing. been so ordered.

7. EVIDENCE 471(24)-QUESTION CALLING Reformed and affirmed.


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


Where all facts which might have been elic

ited by question calling for conjectural conclu(Court of Civil Appeals of Texas. San Anto

sion, if in proper form, were testified to withnio. Nov. 20, 1918. Rehearing De

out objection, there was no injury to appellant nied Dec. 18, 1918.)

because of exclusion of question and probable


Appeal from District Court, Bexar County; Employé of railroad company, injured while R. B. Minor, Judge. riding upon track in a motorcycle by invitation

Suit by Emil H. Frick against the Internaof another employé after working hours, motorcycle being run down by freight train, held a tional & Great Northern Railway Company "trespasser."

and its receivers. The cause was tried with

a jury upon special issues. The jury answer2. APPEAL AND ERROR Om1067 – FAILURE TO I ed the issues against plaintiff, in accordance DEFINE TERMS-HARMLESS ERROR.

with which judgment was rendered, and

| plaintiff appeals. Affirmed. sustained while riding upon track in a motorcycle by invitation of another employé after Perry J. Lewis, Champe G. Carter, Ranworking hours, instruction that plaintiff was a dolph L. Carter, and H. C. Carter, all of San "trespasser," although quoted term was not Antonio, for appellant defined, held without injury to plaintiff.

John M. King, of Houston, and F. O. Davis

and Marshall Eskridge, both of San Antonio, 3. RAILROADS 359(1)-DUTY TO TRESPASSER

for appellees. -INSTRUCTION.

Instruction that railroad company owed a trespasser no duty until his position of peril

SWEARINGEN, J. This is a suit by Emil was discovered was erroneous.

H. Frick, the appellant, against the Interna

tional & Great Northern Railway Company 4. APPEAL AND ERROR 1068(1) — ERRONE and its receivers, James A. Baker, and Cecil OUS INSTRUCTION-HARMLESS ERROR.

A. Lyons, to recover damages for personal Instruction that plaintiff was a trespasser injuries. The cause was tried with a jury on track, and that defendant railroad owed him

upon special issues. The jury answered the no duty until his position of peril was discov

issues against appellant, in accordance with ered, although erroneous, and not in compliance

which judgment was rendered. with Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a, as to definition of terms, cannot be said

Appellant's petition alleged that he was an to have contributed to result where jury found

employé of the appellee railway company, in answer to only issue submitted that oper

and upon November 5, 1913, he accepted an ators of train did not discover plaintiff's peril invitation from another employé of the railin time to have prevented injury.

way company, Jack Meyers, to accompany

O reco

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

543) Dia the engineer of fireman operating

him in the use of the railway track of the "(1) Did the defendant's engineer or fireman company with a motorcycle belonging to the in charge of the locomotive discover the plainrailway company, but under the care and tiff's position of peril in time, by the exercise custody of Jack Meyers. It was alleged that of ordinary care, to have sounded a warning the company's mechanic, an official having of the approaching train that would have precontrol over the said car and the men there vented the injury to plaintiff?

(2) Did the engineer and fireman, after such on, was present, saw and consented to the discovery, if any, fail to give such timely warntrip; that when returning to San Antonio ing as would have prevented the injury to plainthe said motorcycle was run down by one of tiff ? the company's freight trains while upon a bridge about eight miles from San Antonio, the locomotive discover the plaintiff's position and appellant was thrown from the bridge of peril in time, with the means at hand, conand seriously and permanently injured; that sistent with the safety of the train, to have so the said collision and injuries were caused slackened the speed of the train as to have by the negligence of the railway company's prevented the injury to plaintiff ?” employés in operating said train at a negli

[1, 2] The first six assignments assail the gent rate of speed and in failing to give a action of the trial court in giving, at the retimely signal of any kind of the approach of quest of appellee, the following special inthe train; that the company's employés in struction: charge of said train were also negligent in • failing to stop or slacken the speed of the

“You are instructed that the plaintiff at the

time of the collision and injury complained of train, and in failing to give a timely warn

was a trespasser on the track of the defending signal after the appellant's position of ant, and that the defendant owed him no duty peril was discovered.

until his position of peril was discovered." The railway company replied with a general denial and a plea of contributory neg.

It is urged that this special instruction is ligence on the part of appellant. The an- fallacious in two particulars, viz.: That it swer averred that the plaintiff was upon a

was error for the court to tell the jury that pleasure trip of his own; was not then in appellant was a trespasser on the railway the course of his employment with the com- company's track, and that it was also error pany, and that appellant was not upon said to tell the jury that the railway company owmotorcycle and track by consent from any ed appellant no duty until his position of one having authority over said car, and that peril was discovered. the employés in charge of the train owed no

The fact is that appellant was rabbit shootduty of lookout at the place where the col. ing after work hours for his own pleasure lision occurred, and did not discover

and was not in the performance of any duty the plaintiff upon the track in time to have for the railway company. He was using the prevented injury to him by using the means main line of track from Laredo to San Antonio at hand. The answer further uverred that at a time when he knew the track would be appellant went out upon the line of the rail- used by the company's train. He was not

invited or licensed to so use the track for his way company without the knowledge or consent of any official or employé of said rail. personal pleasure by any one shown to have

authority to give the permission to so use the way company having control over the line, and that no notice was or could have been track. Under the facts appellant was begiven to the employés in charge of the train yond question a trespasser. I. & G. N. Ry. which came in contact with the motorcycle. Rep. 521; T. & P. Ry. v. Black, 87 Tex. 161,

v. Cock, 68 Tex, 713, 5 S. W. 635, 2 Am. St. 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 ut 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- | *

unless its submission has been reroad 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

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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

"If such circumstances show that the party explain any term or give any rule of law to injured was a

trespasser at the time aid the jury in determining any of the issues of the injury, the issue of contributory neglisubmitted. It is entirely irrelevant to those gence is, as a general rule, established as a matissues, but we are not able to say that any ter of law; but not so in all cases." T. & P. injury was caused to appellant by reason of Ry. Co. v. Watkins, 88 Tex. 24, 29 S. W. 234. this irrelevant, though correct, statement of a fact.

[4, 5] The special instruction made an er[3] The instruction that the railway com

roneous statement of the law, and the inpany owed a trespasser no duty until his posi- struction was not such explanation and defition of peril was discovered is error, as con

nition of legal terms as was necessary to entended by counsel for appellant. In the case able the jury to properly pass upon and renof Texas & Pacific Ry. Co. v. Watkins, 88 der a verdict on such issues as were submitTex. 20, 29 S. W. 232, Associate Justice Den- ted. Article 1984a. But we cannot say that man, writing the opinion for the Supreme the irrelevant charge, erroneous though it Court, stated:

was, probably contributed to the result reach. .

ed by the jury. The jury found in answer to "It is often said that a railroad owes no duty the only issue submitted to it that the operato a trespasser.

This doctrine has never been adopted in this state, but has been tors of the train in collision did not discover expressly repudiated."

appellant's position of peril in time to have

prevented the injury. The assailed instrucThen he cites Railway v. Sympkins, 54 tion had no bearing upon this issue. The Tex. 618, 38 Am. Rep. 632, Railway v. He- possible inference that the jury might have witt, 67 Tex. 479, 3 S. W. 705, 60 Am. Rep. 32, believed that the railroad company owed apand Artusy v. Railway, 73 Tex. 193, 11 s. pellant no duty even after discovery of the W. 177. Associate Justice Denman then peril is not tenable, in view of the special states the true rule:

instruction requested by appellant and given That it is the duty of the servants of the by the court, which is as follows: railroad company operating its trains to use "In connection with questions Nos. 1 and 3, reasonable care and caution to discover persons I charge you that the exercise of ordinary care on its track, and a failure to use such care and on the part of the engineer and fireman in caution is negligence on the part of such com- charge of the train to use all the means at pany.” Railway v. Watkins, 88 Tex. 20, 29 s. hand to warn the plaintiff and slacken the W. 232.

train's speed, after discovering plaintiff's peril,

if it was discovered, is not diminished or disThis rule has been expressly stated in pensed with because of the fact that the plainmany Texas decisions, some of wbich are the tiff himself may have been wrongfully upon the

track." following cases: Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. The first six assignments are overruled. 1126; Railway v. Hammer, 34 Tex. Civ. App. The foregoing also disposes of the ninth 354, 78 S. W. 708; Railway v. Watts, 173 S. and tenth assignments. W. 909; Railway v. Hewitt, 67 Tex. 473, 3 [6] The seventh assignment is that the S. W. 708, 60 Ain. Rep. 32; Railway v. Hue- court erred in overruling the appellant's exgle, 158 S. W. 197; Railway v. O'Donnell, 58 ception to the main charge. Said charge was Tex. 27; Railway v. Davis, 110 S. W. 939 ; 33 excepted to because it failed to submit to Cyc. 786.

the jury the issues of defendant's negligence The cases cited by counsel for appellee do in running its train at an excessive rate of not announce a contrary rule and are in no speed, and in failing to give proper warning, respect in conflict with the opinion in the and in negligently running the appellant Watkins Case.

down. The bill of exception upon which this In Texas Midland Railway Co. v. Byrd, proceeding is brought before us discloses that 102 Tes. 263, 115 S. W. 1163, 20 L. R. A. counsel only objected to the omission. “But (N. S.) 429, 20 Ann. Cas. 137, M., K & T. Ry, the failure to submit any issue shall not be v. Malone, 102 Tex. 269, 115 S. W. 1158, H. deemed a ground for reversal of the judgment & T. C. v. Richards, 59 Tex. 373, as well as upon appeal

unless its submission in Over v. M., K. & T. Ry., 73 S. W. 535, has been requested in writing by the party Missouri, K. & T. Ry. v. Cowles, 96 Tex. 24, complaining of the judgment." Vernon's 67 S. W. 1078, 69 S. W. 541, recovery was Sayles' Tex. Civ. St. art. 1985. This statdenied for the injuries sued for because ac- utory requirement has not been observed. cording to the facts involved in those cases We overrule the seventh assignment. it was determined that the injured party was [7,8] We overrule the eighth assignment, guilty of contributory negligence, which was complaining of the exclusion of testimony. found as a matter of law to have been the The form of the question excluded upon objec

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tion called for a conclusion of the witness as gas at less cost than was usually produced to what might have occurred if something had for towns and villages, but that in fact it been done, which the witness had testified cost more; that he gave notice of the failure was not done. The question called for a of the consideration to the payee, and deconjectural conclusion. All facts that might manded the cancellation of the notes; that have been elicited by the question if in prop- it was agreed to, but, the notes not being er form were testified to by the witness with present, the payee's manager agreed to obout objection, which refutes the idea thattain them and return them to defendant, any injury could have been done to appel which was not done; that thereafter they lant by the exclusion of the question and were assigned to the plaintiff, with full probable answer.

knowledge upon his part of the fraud and The judgment is affirmed.

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

[1] But one assignment of error is urged (Court of Civil Appeals of Texas. El Paso.

by appellant, viz.: "The court erred in renderNov. 14, 1918. Rehearing Denied

ing judgment for plaintiff.” Appellees sug. Dec. 18, 1918.)

gest that this assignment cannot be consider1. APPEAL AND ERROR 719(8) -- Assigned under the rules, because it was not conMENTS OF ERROR-FUNDAMENTAL ERROR. tzined in the motion for new trial filed, but

Where a judgment does not conform to the was filed after the motion was overruled. verdict, it presents fundamental error, which Upon the point, we cite Hess & Skinner Enthe appellate court will review without assign gineering Co, v. Turney et al. (Sup.) 203 S. W. ment.

593, but without in any wise holding that it 2. PRINCIPAL

was decisive of the question under the facts KNOWLEDGE OF AGENT - IMPUTATION TO | presented by this record, because the case PRINCIPAL

cited was tried without a jury and the instant Where the agent of a purchaser of notes, as case with a jury. But we conclude that, attorney for the payee, knew of the failure of

since the judgment in this case does not conconsideration, such knowledge is imputable to

form to the verdict of the jury, it presents the purchaser, and he cannot recover as a bona fide purchaser without notice.

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.

[2] The proposition urged is that, under Action by H. W. Long against George M. the verdict of the jury, the judgment should Holmes and wife. From a judgment for have been for the defendant. As applicable plaintiff, defendants appeal. Reversed and to this question the jury found: rendered.

"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 misrep

resentations induced the defendant to execute rence, of El Paso, and R. M. Turner, for ap-1!

the notes sued on. That Fleming had informapellee.

|tion or belief when he purchased the notes for

Long that defendant claimed that they were HARPER, C. J. This suit was filed by ap caused to be executed through false representapellee on 15 promissory notes, executed by tions. * * * That plaintiff or his attorney, appellants, payable to Pomona Valley In- Fleming, before the notes were purchased by vestment Company. Plaintiff alleged that

Long, had information which should have put

a man of ordinary prudence upon inquiry as to "Before maturity, the said company indorsed

whether a defense or failure of consideration the said notes in blank and delivered them to might be claimed as to said notes, and that, M. A. Fleming, for plaintiff ; the said Fleming

having such information, if it had been folbeing the agent of plaintiff in purchasing said I lowed up by the use of ordinary diligence, they notes for plaintiff.”

would have discovered the facts. * * * That

Gentry or his attorney, Fleming, agreed to canThe defendant pleaded failure of consider-Icel the notes sued on before the sale to Long. ation and that they were obtained by false * * * 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. The exact point urged is: of Arizona; that it was falsely represented, "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 attorney 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 PROPERTY have been rendered for defendants."

OF WIFE-EVIDENCE. The plaintiff, as will be noted in pleadings wife of decedent claiming through her son

In trespass to try title by divorced first quoted, pleaded that Fleming was the agent against her husband's second wife, such second of the plaintiff at the time be bought the wife, defendant, had the right to introduce tesnotes, and Fleming, testifying for plaintiff, timony tending to show that her husband caussaid he was the attorney for plaintiff, Long, ed deed of the land to be made to her because at the time of the purchase. It is also noted he intended it as a gift. that Fleming was at the same time, and for

4. HUSBAND AND WIFE 119(3)-DEED TO all the time of the transactions for which

WIFE-SEPARATE PROPERTY. the notes were given, the attorney of the

Where husband caused deed of land to be payee company. The rule applicable here is made to his wife intending it as a gift, it beclearly stated in Allen v. Garrison, 92 Tex. came her separate property, though the deed 546, 50 S. W. 335 :

did not state on its face that title was to be "Where an agent has effected a transaction for so vested in the wife. his principal by fraudulent practices, the latter cannot exempt himself from the consequences of


TION OF LAND BY WIFE-FURNISHING Con. such conduct by asserting that he had no knowl

SIDERATION. edge of the fraud."

A wife acquired land as her separate estate The same principle was declared to be the if the consideration used in paying for the law in Bank v. Cruger, 91 Tex. 446, 44 s. w. property was her separate estate. 278.

6. HUSBAND AND WIFE Om 132 PROPERTY By the finding of the jury that Fleming OF WIFE-EVIDENCE. knew that the original payee had agreed to

In trespass to try title by divorced first cancel the notes because of the failure of wife of decedent, claiming through her son consideration, and by the further fact that against second wife, defendant second wife, unplaintiff alleged Fleming to be his agent at der the pleadings, held entitled to show that the time of the purchase of the notes, al- deed which was made to her was intended for though the plaintiff had no knowledge of the her separate use and benefit; testimony being fraud, so found by the jury, such a privity admissible under general denial and plea of not between them arose as to charge the plaintiff

guilty. with the consequences of the acts of his 7. HUSBAND AND WIFE w273(2)→COMMUagent, Fleming, as that the former took the

NITY PROPERTY. notes with all the defenses to which they

In trespass to try title by divorced first were subject in the hands of the original wife of decedent, claiming through her son, payee, and he cannot exempt himself from against second wife, where by judgment court the consequences of the conduct of his agent did not attempt to reform deed to second wife, by asserting that he had no knowledge of it was not necessary tbat grantors should have the fraud.

been made parties. The cause must therefore be reversed, and

8. HUSBAND AND WIFE w 273(2)→COMMUjudgment here rendered for appellant.

NITY PROPERTY. Reversed and rendered.

If land conveyed to second wife became her homestead, it was not subject to partition after the husband's death at suit of the divorced first wife, claiming through her son, even though it was community property of the second mar

riage. JOHNSON et al. v. JOHNSON. (No. 5968.) (Court of Civil Appeals of Texas. Austin. 9. HUSBAND AND WIFE 273(4)-COMMUNov. 9, 1918. Rehearing Denied



If land conveyed to second wife was com1. APPEAL AND ERROR Om756—APPELLANT'S munity property of second marriage, a divorced BRIEF.

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.

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

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