"We are also of the opinion that the court erred in instructing a verdict for the defendant Harwood. The charge is as follows: 'In this case there is no evidence tending to show what part of the decrease in the business of Raymond & Bro. below that done by Harwood & Yarrington was caused by the competition of Harwood, if any, in violation of his contract, what part was due to other competition than tangle in which the matter of the shipment had gotten, that he had no time to devote to other business. Therefore, so far as the facts of this case are concerned, we are of the opinion that the same measure of damages should obtain as was applied by the Supreme Court in O'Connor et al. v. Smith et al., 84 Tex. 232, 237, 19 S. W. 168, 170. In that case plaintiffs sued to recover dam-houses represented by Harwood, or what part ages for breach of contract on the part of was due to lack of experience in the business on defendants, alleging that plaintiffs had con- the part of Raymond & Bro., as compared with tracted with defendants to do certain work Harwood & Yarrington. * The jury will and alleged that defendants breached the In view of the fact that the case will be retherefore return a verdict for the defendant.' contract and refused to allow plaintiff to manded for a new trial, we must refrain from perform the work. Plaintiffs sought as a discussing the testimony. We may say, howpart of their cause of action to recover dam-ever, that the evidence does not show how much, ages in the way of profits that they would have made on other contracts, and the Supreme Court approved the statement of the law as made by the appellants therein in the following words: * * if any, the plaintiff was damaged; and it may be that if, under the testimony and a proper instruction, the jury had given only nominal damages, the court should not have disturbed the verdict. From the nature of the case it is impossible to show the damages with ac"Where a contractor has been allowed to per-curacy, and to require accuracy in such a case form under his contract the work agreed to be would be to deny a remedy for a wrong. In done by him and has received the contract price Welsh v. Morris [81 Tex. 159, 16 S. W. 744, therefor, but has been unreasonably hindered 26 Am. St. Rep. 801], previously cited, a judgand delayed in its performance by the fault of ment for substantial damages was sustained upthe other party, he cannot recover as damages on testimony quite as unsatisfactory, to say the for said hindrance and delay the profits that least of it, as that introduced in the present he might have made by his business or calling on other work if he had not been so delayed." The court further said: "We think the proposition correctly states the law, and that the evidence objected to should have been excluded. The profits that may be considered in giving damages for a breach of contract are such only as are the direct and immediate fruits of the contract entered into between the parties to it. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed perhaps the only inducement to the arrangement.' But the loss of profits that may result from collateral enterprises are regarded as too remote to be considered. 1 Suth. on Dam., 115." Sce Cates v. Sparkman, 73 Tex. 619, 11 S. W. 846, 15 Am. St. Rep. 806; Elmendorf v. Classen, 92 Tex. 472, 49 S. W. 1013; Newell on S. & L. (3d Ed.) § 1069, p. 1110. Appellee cites several cases to sustain the recovery as to this item of damages, among which are Raymond v. Yarrington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914, and Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801. In the first-cited case, suit was brought by Raymond against Yarrington and others for alleged breach of contract, by the terms of which one of the defendants and his partner had agreed with plaintiff not to enter into or conduct a similar business in certain designated territory without the written permission of plaintiff. It was alleged that defendants had breached this contract and had entered into a similar business in said territory. In reversing a judgment for defendant, the Supreme Court said: 207 S.W.-43 case." [14] It will be noted that in the last-cited case the suit was predicated upon an alleged breach of contract on the part of defendant not to engage in a rival business within the designated territory, and hence it is evident that the parties to the contract had in mind, at the time of the making thereof, the very character of damage which plaintiff sought to recover for in the suit. It is patent that both parties to the contract understood that the entrance on the part of the defendant into a business similar to that which he had sold to plaintiff would injure plaintiff by reason of curtailing his business and decreasing his profits. But it is not so in the instant case. In the English case of Ratcliffe v. Evans, 2 Q. B. 524, also cited by appellee, it was held that in a case of libel not actionable per se, but false and intended to cause damage, evidence of general loss of business was admissible, without specific proof of the loss of any particular customers or orders, and was sufficient to sustain the action. To use the very words in appellee's brief, there were two grounds for recovery stated in plaintiff's petition: "(1) Wrongful interference with contractual relations, and (2) slander." As the character of plaintiff's testimony, as before noted, excludes the conclusion that the loss to plaintiff as to profits he would or might have made on other business caused directly by the publication and circulation of the slander, plaintiff must rely, if at all, as to this item, upon his claim for damages arising by reason of the interference of defendant with the contractual relations existing between plaintiff and the Guaranty Trust Company. As before stated, May testified, in the very conversation in which it is claimed these two slanderous statements were made, that he (Bigham) did not wish to be understood as saying that plaintiff was not authorized, under his blank policy, to write insurance in any amount, but that he merely intended to say that in this particular case plaintiff had committed an act which was perhaps not strictly correct in writing so large amount of insurance without previously consulting the company with regard to it. As is said by Mr. Newell, in his late work on slander (section 368), in determining this question: Guaranty Trust Company. We do not mean I had the right to expect and did expect of to say that if the evidence reasonably sup- him. Also, the jury might find that Bigham ported the conclusion that loss was sustained did state that the defendant had no reinsurby plaintiff by reason of the alleged state- ance on the Dacia shipment; but, in view of ment of Bigham to Max May, in the way of Max May's testimony alone, the jury might profits on the shipment in question, that reasonably find that in so stating Bigham did plaintiff would not be entitled to recover not intend, nor did Max May understand, therefor. But we are of the opinion that, as that no reinsurance had been obtained, that to profits on other business, such evidence is Bigham intended to state, and May undertoo remote and speculative, and such loss stood him to state, in effect, that the redoes not proximately result from the words insurance obtained was limited in its amount, alleged to have been spoken. Complaint is and did not constitute any substantial proalso made as to the admission of the testi-tection either to the defendant or to the mony of plaintiff with reference to his mental distress, for which the jury awarded him the substantial amount of $25,000. Some of this anxiety or distress which the plaintiff testified he suffered was caused by his fear or knowledge that, in case the contract between him and the Guaranty Trust Company should not be consummated by the terms of which contract the trust company had agreed to finance the shipment, that he would not be able to pay the freight and other expenses, and, further, by the fear that the buyers of the cotton included in the shipment would have a right to recover from him for his failure to deliver the same. Without holding that the objection to the testimony as a whole should be sustained because certain portions of the testimony were inadmissible, in view of another trial, we will say that in our opinion plaintiff would not be entitled to recover for any mental distress which was not the direct result and proximate effect upon his mind and feelings of the alleged libelous slanderous statement. Pull-made, written, or printed. man Palace Co. v. McDonald, 2 Tex. Civ. App. 322, 21 S. W. 945; Jones v. T. & N. O. Ry., 23 Tex. Civ. App. 65, 55 S. W. 371; Turner v. Hearst, 115 Cal. 394, 47 Pac. 129. [15, 16] By another group of assignments objection is made to the submission of a number of special issues of fact. Without attempting to discuss the assignments under this group separately, we will content ourselves with stating that in our opinion, under the state of facts disclosed, a recovery ought not to be sustained upon the mere finding by the jury that Bigham stated to Max May that the issuance of the certificates of insurance against the Dacia cotton was unauthorized, and that the defendant company had no reinsurance on the Dacia cotton. The jury might find, in spite of the somewhat contradictory testimony of Max May in his depositions, that Bigham did make to said May both of said statements, and yet believe and be able to further find, in view of the whole conversation between Bigham and May, that Bigham did not intend to charge, and May did not understand him to charge, that Owens had been guilty of any wrongful conduct or breach of good faith, but merely had failed to exercise the conservative discretion which the defendant "The words spoken as a whole should be considered without dwelling on isolated passages, and every part should be given its proper weight." The language alleged to be defamatory must be construed as a whole; that is, the words must be construed in connection with other parts of the conversation or proof [17] Under the 113th assignment, complaint is made of the refusal of the court to submit the following issue: "Did Henry J. Bigham have authority from the Providence-Washington Insurance Company to make a statement to Max May to the effect that the certificates were unauthorized?" If the evidence as to the authority of Bigham to act for and bind the defendant company in the next trial be of a character similar to the evidence in this trial, we are of the opinion that this issue tendered in the last trial should be given. [18] We are also of the opinion that the court should have submitted defendant's special issue No. 10, as follows: "Was the refusal of the Guaranty Trust Company to permit the Dacia to sail between January 21 and 30, 1915, due to the fact that it would not accept marine certificates for so large whether that company was reinsured or not, an amount in any one company, regardless of and regardless of any notification, if any, that the certificates were uauthorized?" On January 21st the Guaranty Trust Company wired Owens as follows: "Notice that all your marine insurance is covered by Providence-Washington Insurance Com. pany. This not satisfactory to us. Owing to the fact that the evidence leaves it somewhat in doubt as to whether the contract between the defendant and the Rossia Insurance Company (under which contract the last-named company had agreed to accept for reinsurance two-thirds of each and all the insurance risks taken by the defendant company) was operative at the time of the insurance of these certificates and at the time of the conversation between Bigham and May, or had been conditionally withdrawn, and owing to the fact that May in one place testified that he did not understand Bigham to say that the issuance of the certificates was unauthorized under the contract existing between the defendant company and Owens, and owing to the fact that May testified that if he had known the risk on the Dacia cotton was being carried one-third by the defendant and two-thirds by the Rossia Insurance Company he would not have allowed the Dacia to sail, and owing to the fact that L. A. Wight & Co., plaintiff's agent, wired plaintiff of January 24, 1915, that the refusal of the Guaranty Trust Company to accept the Providence-Washington Insurance Company certificates was not based on the latter's notification that the certificates were unauthorized, but was based on the trust company's statements that it would not accept marine certificates for so large an amount from any company whatever, regardless of whether reinsured or not, we think the issue tendered should have been given. [19] We are also of the opinion that error was committed as claimed in the 121st as Reversed and remanded. rectly controverted. NITY PROPERTY. WIFE 2482-COMMU Where a woman rented land before she married and at the time of the marriage owned right, the property did not become community the crops growing thereon in her own separate property, the expense of growing the crop being paid out of the crop, except that the husband worked a few hours on it. ty; Ben H. Denton, Judge. who filed a cross-action. Judgment for plain- The suit was commenced by appellee. It was for a divorce from appellant on the ground of cruel treatment. In a cross-action appellant sought a divorce from appellee on the same ground. It appeared that when the parties married July 3, 1917, appellant was a widower about 62 years of age, and that appellee was a widow about 58 years of age. They separated August 16, 1917, and never afterwards lived together. signment, in the admission of a telegram from L. A. Wight & Co., plaintiff's agent to plaintiff, in which message it was stated in In her petition appellee alleged that she substance that the trust company had noti-owned in her separate right crops of cotton fied the sender that the defendant had notified the trust company that the marine cer tificates were unauthorized, and that defendant had no reinsurance on the Dacia. We think said testimony was hearsay and selfserving, and not binding upon the defendant. Assignments other than those mentioned need not be discussed, as they involve principles of law similar to those involved in assignments already discussed, or questions not likely to arise on another trial present or concern matters which it will be fruitless to discuss in view of another trial, such as the alleged excessiveness of the verdict with reference to various items of damages, etc. For the reasons given, the judgment of the trial court is reversed, and the cause re value of $1,000, which appellant was threatand corn and two horses, of the aggregate ening to dispose of. She prayed that he be restrained from interfering with her in the cross-petition appellant alleged that he ownmanagement, etc., of said property. In his ed said crops and horses by purchase thereof of appellee's son, Lankford Price. in controversy were grown on land appellee It appeared from testimony that the crops that the horses were purchased by her and rented of one Martin for the year 1917, and her son Sherman, a boy about 17 years old, of said Martin on a credit, they executing to Martin a mortgage on the horses to secure the purchase price. It seems that Sherman prepared the land for cultivation, planted some of the crops grown on it, and then en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 676 207 SOUTHWESTERN REPORTER listed for service in the navy of the United States. Lankford, another son of appellee, then took charge of the farming operations, and continued same until some time in July, when he enlisted for service in the army of the United States. Appellee testified that each of her said sons, when they, respectively, ceased to work on the land, turned over any interest he had in the crops and horses to her; that she took charge of same, and out of the proceeds thereof paid indebtedness she, Sherman, and Lankford had incurred. Appellant testified that Lankford turned over the property in controversy to him when he (Lankford) enlisted as stated, in consideration of his (appellant's) undertaking to pay the debts he (Lankford) owed. There was no testimony showing how Lankford acquired a right to dispose of the property. not bound to believe the testimony; and, The judgment is affirmed. The jury found on issues submitted to them: (1) That appellant had been guilty of cruel treatment of appellee, in ways alleged by her, "of such a nature as to render their living together insupportable"; and (2) that appellee's son Lankford did not sell the property in controversy to appellant; and (3) that a writ of injunction, issued at appellee's instance, was not wrongfully sued out. The court thereupon rendered judgment, refusing appellant relief he prayed for, and granting appellee relief she prayed for, to wit, a divorce, and perpetuating an injunction he had LANCASTER et al. v. MAYS. (No. 2041.) before granted, restraining appellant from (Court of Civil Appeals of Texas. Texarkana. molesting and interfering with appellee in the management of her property. Appellant Dec. 19, 1918. Rehearing Denied Jan. 2, 1919.) was dissatisfied with the judgment, and pros-1. APPEAL AND ERROR 1026 - REVIEW ecuted this appeal. J. W. Gross and H. W. Hunt, both of Bonham, for appellant. HARMLESS ERROR. To authorize the appellate court to reverse a judgment for error, it must appear that the Cunningham & McMahon, of Bonham, for error was reasonably calculated to, and probaappellee. WILLSON, C. J. (after stating the facts as above). The judgment is attacked on two grounds: First, it is insisted that it was without the support of evidence in so far as it determined entitled to a divorce. that appellee was Careful consideration of the record has caused us to resolve a doubt we had as to whether this contention was meritorious or not in favor of the judgment in that respect. Therefore the assignments which present the question are overruled. [1, 2] Second, it is insisted that the judgment was wrong in so far as it denied appellant a recovery of the property, or a part of it, in controversy. It is urged that it appeared from uncontroverted testimony that appellee's son Lankford sold the property to appellant. It may be conceded that the testimony of appellant and his son that Lankford turned the crops over to the former was But the jury were not directly converted. bly did, injure the appellant. 2. APPEAL AND ERROR 1062(1)—REVIEW— HARMLESS ERROR. In an action by a railroad fireman for injuries, held, that instructions, though erroneous in submitting to the jury facts conclusively established, etc., were harmless. 3. TRIAL 331-VERDICT-INDEFINITENESS. Where under the charge the only theory on which verdict could be rendered against defendant for injuries to railroad fireman was negligent lookout, a verdict for plaintiff could not whether jury found on some other acts of negbe indefinite in that it could not be known ligence. 4. APPEAL AND ERROR 930(2) — PRESUMPTION-INSTRUCTIONS REGARDED. It must be assumed that the jury regarded the instructions given. 5. TRIAL 260(8)-INSTRUCTIONS-REFUSAL. Where under the instructions the jury could find for plaintiff, a railroad fireman, injured in a collision, only if the engineer was negligent in failing to discover the open switch, etc., held, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the refusal of further instructions that the engineer was not negligent in doing no more than he did to stop the train after discovering the open switch, that negligence could not be based on the fact the switch was open, etc., was proper. 6. MASTER AND SERVANT 286(34) - INJURIES TO FIREMAN-QUESTION FOR JURY, In an action for injuries to railroad fireman in collision based on negligence of engineer in running into open switch, where the evidence showed that green light and green target meant clear main track and red light and red target meant open switch, it was a question for jury whether engineer was negligent in passing a green light and red target. "Same was caused by some other person, not in the employ of this defendant, but acting maliciously, turned, broke, and changed the switch, which caused the engine to go on the wrong track and cause the accident and injury." There was testimony to support findings as follows: (1) That the switch was thrown for the side track; (2) that it was the duty of the engineer as he approached the switch to use care to discover if it was so thrown; (3) that in the exercise of proper care he should have discovered that it was so thrown when his engine was as far as from 175 to 200 yards from it, whereas he did not discover that the switch was so thrown until 7. MASTER AND SERVANT 139-INJURIES TO his engine was within 75 to 100 feet thereof; SERVANT-PROXIMATE CAUSE. In an action by a railroad fireman injured in a collision when the engine on which he was working passed through an open switch, and the sole basis for liability was the negligence of the engineer in not discovering that the switch was open, it is immaterial that switch was changed by an unauthorized person. Appeal from District Court, Harrison County; P. O. Beard, Judge. Action by H. R. Mays against J. L. Lancaster and Pearl Wright, receivers. From a judgment for plaintiff, defendants appeal. Affirmed. Appellee was the fireman on an engine of a passenger train which belonged to the Texas & Pacific Railway Company and which was operated between Marshall, Tex., and New Orleans, La., by appellants as the receivers of said company. On a night in February, 1918, the train was moving on the main line track near Boyce, La., at a speed of from 30 to 40 miles an hour, when, because of an open switch, it ran on to a side track and collided with cars standing thereon. The engine was within 75 or 100 feet of the switch before appellee discovered that it was open. He at once hallooed to the engineer advising him of the fact, and prepared to jump from the engine. He (appellee) fell or was thrown from the engine about the time it collided with the cars on the side track, and was thereby seriously and permanently injured. He testified: "What knocked me off, I suppose, is when the engine goes on a curve on the spur track, at first it turns to the left and then turns to the right. I think I fell off before the engine struck the cars on the side track, but am not sure." On the theory that the injury he suffered was due to negligence on the part of appellants which rendered them liable to him, appellee sued and recovered the judgment for $7,500, from which the appeal is prosecuted. In their answer appellants denied that the accident was due to negligence on their part, but alleged that (4) that he could have stopped the train in a distance of 100 yards. In his charge, after defining “negligence,” "ordinary care," and "proximate cause," and telling the jury that it was the duty of both the engineer and appellee to keep a lookout to see that the track was safe for the train, and that it was the duty of the engineer "to exercise ordinary care in the operation of the train to discover any dangers ahead, and to exercise ordinary care to avoid injuring the plaintiff," the court further instructed the jury as follows: "(6) Bearing in mind the foregoing definitions and explanation, if the jury shall believe from a preponderance of the evidence that the engineer in charge of the train was guilty of negligence in that he failed to exercise ordinary care in keeping a lookout for the condition of the track over which he was running, and that he negligently failed to discover that the switch was turned so as to allow the train to run upon the side track and its cars thereon, in time to have stopped the train and to have avoided the injury, and that as a proximate result of such negligence, if any, the plaintiff was injured, or if the jury should believe from the evidence that the circumstances of the situation made it appear that it was necessary for the plaintiff to jump from the engine in order to extricate himself from the danger, if any, and in jumping from said engine he received said injuries by reason of the negligence of the engineer in the respects herein referred to, then in either event you will find in favor of the plaintiff, unless you find for the defendants under other portions of this charge. But if you fail to find that the engineer was guilty of negligence in the respects above submitted to you, then you shall find for the defendants. "(7) If some unauthorized person or persons not in the employ of defendants turned or changed the switch in question, the defendants would not be responsible for that act, and the mere fact that by reason of such facts, if any, the switch was in a position to allow the train to go in upon the spur track would not be negligence on the part of the defendants, and you cannot find a verdict for the plaintiff unless you further find that the engineer failed to exercise ordinary care in discovering the condition of the switch. So if the jury shall believe that the engineer operating the train exercised the care For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |