Judgment of the county court amended and tice's court, and yet, without endeavoring affirmed. to state any "good cause" for so adjudging Robert W. Stayton and John C. North, both the costs, appellant had half of the costs as of Corpus Christi, for appellant. W. R. Perkins, of Alice, and C. C. Forry, of McAllen, for appellee. FLY, C. J. This is a suit for damages to certain cattle shipped over appellant's and another line by appellee from Bay City, Tex., to San Diego, Tex.; the grounds of negligence being delay and rough handling. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appellee for $161.70. The suit originated in the justice's court, where appellee obtained a judgment for $185. sessed against it; the other half being assessed against its codefendant, the Texas, Mexican Railway Company. The latter did not appeal, and the judgment against it will not be disturbed. The judgment of the county court will be so amended as to assess the costs of that court, incurred by appellant, against appellee, and as amended will be affirmed. The costs of this appeal will be assessed against appellee. MARION COUNTY v. ROWELL, County (Court of Civil Appeals of Texas. Texarkana. 192(3)-PLEAD LIMITATION OF ACTIONS Appellee testified that some of the cattle were fat and none of them were "thin." He testified that he loaded the cattle so as to! place the small cattle in cars by themselves, and the large cattle in other cars. W. D. Doughty, a witness for appellant, stated he was agent of the connecting carrier, and that, In action against county judge and sureties when the cars of cattle were delivered to his on his bond to recover money due plaintiff principal by appellant, two were dead and county, a demurrer to petition because action three were down and in such condition that was barred by limitations was properly sustained, where supplemental petition in avoidthey could not get up. Appellee did not acance failed to show defendant's fraudulent concompany the cattle. It is true that witness-cealment of cause of action preventing bringing es for appellant swore that there was no rough handling or unreasonable delay, but the jury did not believe that testimony, because they found not only that the cattle were in good condition when delivered to appellant, but that appellant was guilty of negligence in handling the cattle, and that such negligence caused the damages sustained by appellee, in the sum of $150. [1] The rule is settled that, when live stock are delivered to a carrier in sound condition, and the shipper does not accompany them, and they arrive at destination dead or in an injured condition, the burden rests on the carrier to show that it is not liable. Railway v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131; Railway v. Powers, 54 Tex. Civ. App. 168, 117 S. W. 459; Railway v. Drahn, 157 S. W. 282; Railway v. King, 174 S. W. 960; Railway v. Cave, 174 S. W. 872; Railway v. Bryson, 195 S. W. 1165. If the jury discredited the testimony of appellant's witnesses, the presumption in favor of the negligence of appellant was not removed. of an action, in view of Rev. St. 1911, arts. 1427, 1453, relating to judge's statements, report to county clerk, and examinations. Appeal from District Court, Marion County; J. A. Ward, Judge. Suit by Marion County against T. D. Rowell, as County Judge, and the sureties on his official bond. Demurrer to petition sustained, and the County appeals. Affirmed. Mason Williams, of San Antonio, for appellant. W. L. Grogan, of Shreveport, La., and R. R. Taylor, Schluter & Singleton, and Armistead & Benefield, all of Jefferson, for appellees. against T. D. Rowell, as county judge, and LEVY, J. The suit is by Marion county the sureties on his official bond, to recover a sum of money alleged to be due and owing the county during the year 1900. The suit was filed April 9, 1917. The defendants specially demurred to the petition upon the ground that the alleged cause of action was barred by the statutes of limitation. The plaintiff, by supplemental petition, pleaded in avoidance of the statute of limitation. The court sustained the demurrer, and the appeal is to revise the ruling of the court. It is re If appellant was guilty of negligence, which the law, under the facts, presumes, there was testimony to sustain a verdict for $150. [2] Appellee recovered a judgment for less in the county court than in the justice's court, and the costs should have been assessed against him in the county court. It is believed that the court did not err in cited in the judgment that the judgment was sustaining the special demurrer; for the for less in the county court than in the jus- matters pleaded in the supplemental peti For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Iudexes tion, relied upon to prevent the running of the statute of limitation, fail to show such fraudulent conduct or fraudulent concealment of the cause of action by the defendant as would prevent the bringing of an action such as sued upon. The statute (article 1427) requires an officer collecting money for the county to report same in writing to the county clerk, and the pleading does not show that such report was not made by the defendant. And as the statute (article 1453) requires the district judge to appoint at each term of the district court a finance committee to examine into the condition of the finances of the county, it would not appear from the pleading that the county was fraudulently prevented from legal ways of knowing or ascertaining that the debt alleged was due and owing. And otherwise giving full force and effect to the said pleading, it is believed that it is wholly insufficient to authorize the staying of the bar of limitation. It is quite unlike the cases cited. The judgment is affirmed. LANCASTER & WIGHT v. ALLEN. (Court of Civil Appeals of Texas. Texarkana. 1. MASTER AND SERVANT 286(14)—DERAIL ordinary care to keep its machinery in reasonably safe condition, so that the fact that an appliance is not condemned upon inspection is not conclusive on question of whether it is a safe appliance. 5. DEATH 86(2)—DAMAGES-ACTUAL EARNING POWER. In action for death, where deceased leaves widow and children, damages are not limited to loss of actual earning power of deceased, and jury may award children damages for loss of a father's nurture and admonition. 6. DEATH ~99(4)—EXCESSIVE DAMAGES. In action for death of 48 year old fireman, a $27,000 judgment, awarded to widow and seven children, was not so excessive as to require reduction by Court of Civil Appeals. Appeal from District Court, Harrison County; P. O. Beard, Judge. Action by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff, and defendant appeals. Affirmed. F. H. Prendergast and Brown & Hall, all of Marshall, for appellant. S. P. Jones and J. T. Casey, both of Marshall, for appellee. HODGES, J. This appeal is from a judgment for $27,000, rendered in favor of the widow and children of T. O. Allen, deceased, against the receivers of the Texas & Pacific Railway Company. Allen was killed as a re MENT OF ENGINE JURY QUESTION-DEFEC-sult of the derailment of the engine on which TIVE SWITCH POINT. In action for death of locomotive fireman from derailment of engine engaged in interstate commerce, evidence that switch point was in a condition to cause wheel to climb on top of rail and cause derailment was sufficient to warrant the submission to jury of whether switch point was defective. FINDING 2. APPEAL AND ERROR 1002 3. COMMERCE 8(6)—INTERSTATE COMMERCE In action for death of fireman engaged in interstate commerce, Act Cong. Feb. 17, 1911 (U. S. Comp. St. §§ 8630-8639), to promote the safety of employés and travelers by compelling common carriers to equip their locomotives with safe and suitable boilers, and section 2 of that act, as amended by Act Cong. March 4, 1915 (U. S. Comp. St. §§ 8639a-8639d), and the regulations of the Interstate Commerce Commission, constitute the law of the case. 4. MASTER AND SERVANT 110 GENCE OF RAILROAD-ACT OF CONGRESS. NEGLI Act Cong. Feb. 17, 1911 (U. S. Comp. St. §§ 8630-8639), providing for official inspection of locomotives engaged in interstate commerce under rules of Interstate Commerce Commission, did not change railroad's legal duty to exercise he was employed as a fireman. The accident occurred near a switch in the railway yards at Texarkana, Tex., as the engine pulling the train was approaching the depot. [1] The court submitted only two of the grounds of negligence set out in the plaintiff's original petition, a defective switch point, and a defective flange on a wheel of the front trucks of the engine. The appellant contends that the evidence as to a defective switch point was not sufficient to authorize the submission of that issue to the jury. While the testimony does not make clear just what caused the derailment of the engine, evidence was admitted, apparently without objection, which tended to show that the switch point was in a condition to cause the wheel to climb on top of the rail and produce such an accident. We are not prepared to say that this evidence was not sufficient to warrant the submission of that issue to the jury. [2] There was considerable testimony offered by both sides as to the condition of the flange on a front wheel of the engine trucks. That of the appellee tended to show that the flange was worn to such an extent that it was unsafe to keep the wheel in the service. It appeared from the evidence generally that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In 1915 this law was amended (Act Cong. March 4, 1915, c. 169, 38 Stat. 1192 [U. S. Comp. St. §§ 8639a-8639d]) so as to make it apply to and include the entire "locomotive and tender and all of parts and appurtenances thereof." The act provided for a system of official inspection to be conducted under rules and tests approved by the Interstate Commerce Commission. Carriers engaged in interstate commerce were required to file with the chief government inspector their rules and instructions for the inspection of their boilers, locomotives, tenders, and appurtenances. And after a hearing and approval by the Interstate Commerce Commission such rules and instructions, with such modifications as the commission required, should become obligatory upon the carriers. It was also provid wheels are constructed so that the angle | test or tests as may be prescribed in the rules made by the flange and the tread of the and regulations hereinafter provided for." wheel is oblique; that in the course of time the wear resulting from friction tends to make that angle more acute; that the flange be comes thinner, and its inside surface next to the rail becomes more nearly vertical. The appellant introduced in evidence the rules and tests promulgated by the Master Car Builders' Association, which were approved by the Interstate Commerce Commission. Several of appellants' witnesses testified that a gauge had been adopted by which to measure the extent of the wear of the flange and thus determine when the wheel became deteriorated to such an extent that it should be put out of service. They testified that they had applied the gauge to this particular wheel, and that according to the rules it was not subject to condemnation. The state of the evidence was such that the jury mighted that if any carrier failed to file its rules and have found either way regarding the condition of the wheel; and their verdict settled the conflict. instructions, rules and instructions not inconsistent with the law were to be prepared by the chief inspector, and, after approval by Appellants requested, among other special the Interstate Commerce Commission, should charges, the following: "It appears in this case that Allen at the time he was killed was engaged in interstate commerce, and the rights of the plaintiff are therefore governed by the act of Congress. If you believe in this case that the flanges on the wheel were in accordance with said rules enacted by the Interstate Commerce Commission, then you cannot find that the railroad company was negligent in that regard." [3] The refusal to give that charge is assigned as error. It is conceded that Allen was at the time of the injury assisting in operating a train engaged in interstate commerce, and it follows that the act of Congress and the regulations of the Interstate Commerce Commission, so far as applicable, should constitute the law of this case. In 1911 Congress enacted a law entitled “An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto." Act Cong. Feb. 17, 1911, c. 103, 36 Stat. 913 (U. S. Comp. St. §§ 8630-8639). The second section (section 8631) is as follows: become obligatory. A penalty of $100 was prescribed for a violation of any of the terms of the act, to be recovered in a suit filed in the District Court of the United States by or under the direction of the Attorney General. It was further provided that whenever a boiler, locomotive, or tender, or any of their appurtenances, were found to be in a condition not in conformity with the laws, rules, and tests adopted and approved as provided, the use of such machinery should be discontinued. The evidence shows that in obedience to that law rules and tests had been adopted for determining when car wheels had become so worn as to be condemned as unsafe. Testimony offered by the appellants tended to show that the wheel alleged to be defective was not unsafe according to the tests prescribed by the rules adopted for that purpose. [4] The propriety of giving the requested charge depends upon whether the tests approved by the Interstate Commerce Commission furnished the sole standard for determining the fitness of the wheel for use by the appellant. In his general charge the court had instructed the jury that the "That from and after the first day of July, term "negligence" meant a failure to exernineteen hundred and eleven, it shall be unlaw-cise ordinary care, and ordinary care was ful for any common carrier, its officers or agents, such care as a person of ordinary prudence subject to this act to use any locomotive engine would exercise under the same circumpropelled by steam power in moving interstate or foreign traffic unless the boiler of said lo- stances. He further told the jury that the comotive and appurtenances thereof are in prop- receivers operating the railroad were reer condition and safe to operate in the service quired to exercise ordinary care to furnish to which the same is put, that the same may be its servants reasonably safe and suitable employed in the active service of such carrier machinery for the work they were employed in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected to perform, and to exercise ordinary care to from time to time in accordance with the pro- keep that machinery in a reasonably safe visions of this act, and be able to withstand such condition for the transaction of its business; that if the defendants exercised that care, then the plaintiff was not entitled to recover. No complaint is made of the common-law tests thus laid down for the guidance of the jury in determining whether or not the railway company had been guilty of negligence in continuing the use of the wheel in question. In the absence of any statute prescribing a different test, that adopted by the court is the one generally approved. When Congress enacted the law which authorized the Interstate Commerce Commission to provide rules and tests, it is not to be assumed that it was intended to lower the standard of caution which has so long prevailed and which is so universally recognized by the courts of this country. The more reasonable inference is that the law was designed to enhance the safety of railway transportation by requiring greater precautions against the retention of defective machinery. The effect of the statute and the appropriate regulations which it authorized was to make the failure to comply with its standards negligence as a matter of law; whereas before this adoption such failure presented an issue of fact to be determined by the jury according to the common-law standard. That, however, did not otherwise alter the legal duty of the railway company to still exercise ordinary care to keep its machinery in a reasonably safe condition. 1 Thompson on Negligence, 13; Sutton's Administrators v. Wood et al., 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 894. The tests prescribed and approved by the commission were not expected to be the sole legal guides for determining whether or not ordinary care has been exercised by railroad companies in respect to their machinery; by a special provision of the law carriers had the right to adopt rules requiring higher standards of fitness than those permitted by rules and tests. The rules of the commission were merely to determine when machinery had become so deteriorated that it must be removed from the service, and are not to be looked upon as licensing the retention of all machinery which might not be subject to condemnation, regardless of its effect upon the public safety. While it is not likely that loyal and competent government inspectors would adopt rules which permit the retention of machinery that common prudence would condemn as unsafe, yet their failure to condemn cannot operate as conclusive proof of a safe appliance. We are therefore of the opinion that the court did not err in refusing the special charge quoted. If the tests approved by the commission were more exacting than those recognized by common-law rules, the appellants have no right to complain at the refusal of the court to give the special charge. On the other hand, if those tests permitted the retention of machinery which men of ordinary prudence would condemn as unsafe, appellants were not entitled to the charge. For it is not to be assumed that Congress intended to authorize a lessening of the precautions for the safety of the public and the employés on railway trains. The appellee offered in evidence a plaster cast of the wheel which it is claimed was defective. This plaster cast was made by one of the attorneys who represented the appellee in the trial in the court below. Over the objection of the appellant this attorney was permitted to detail the circumstances under which he took the plaster cast, and to testify that it was correctly taken. The objection urged was that the witness, being an attorney in the case, should not have been permitted to become a witness for proving such facts. It is argued that such conduct was a violation of the rules of professional ethics and should be rebuked by reversal of the judgment. Whatever may be said as to the professional propriety of an attorney engaging in that method of preserving and presenting evidence, we are not disposed to go to the extent insisted upon by counsel for the appellant. We do not feel justified in visiting upon an unoffending client the consequences of an improper act on the part of an attorney where such act has not illegally prejudiced the rights of the opposing party in the trial of the case. An attorney in a case is not by reason of his employment, rendered incompetent as a witness, except in certain instances. If his testimony is rejected it is upon the sole ground that he violated the rules of professional ethics. [5, 6] The deceased left a widow and seven children. To the widow the jury apportioned $8,000, and the remainder was divided among the children, whose shares ranged from $250 to $4,500. It may be that the deceased, who was 48 years old at the time of his death and had an expectancy of something over 22 years, could not have earned, clear of his personal expenses, that amount of money, had he lived out his expectancy. But we do not understand the rule to be that the amount of damages recoverable in actions of this kind is limited to the loss of the actual earning power of the deceased. The children lose more than what their father would give them in dollars and cents; by the wrongful act of the railway company they were deprived of a father's nurture and admonition, and it is left to the jury to place a pecuniary value upon that feature of their loss. While the verdict in this case seems to be a liberal one, we do not feel justified in holding that it is so excessive as to require reduction. The judgment is affirmed.. JOWELL v. LAMB 987 price therefor to be due and payable on delivery thereof; that appellants failed to tender such a contract. The court at appellants' request filed his conclusions of fact and law in support of his judgment for appellee. Prior to the fiting thereof the amended motion for new trial had been overruled. The record contains no assignments of error other than the paragraphs of said motion. The assignments of error appearing in the brief are not copies of the paragraphs of said motion. Some of them present questions raised in the motion, Appeal from District Court, Bexar Coun- but each has been revised to such an extent ty; S. G. Tayloe, Judge. Suit by Eugene Early and another, under the firm name of the Waco Oil & Refining Company, against the Texas Refining Company. Judgment for defendant, and plaintiff appeals. Affirmed. Ingrum & Robinson, of San Antonio, for appellant. Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee. as to disclose clearly a purpose to reconstruct the paragraph instead of to copy the same. Objection is made to the consideration of the assignments and the same must be sustained. Mansfield v. Mansfield, 198 S. W. 169, and cases therein cited. The nearest approach to a copy is made in the fifth assignment, but, even if it could be held that as to such assignment rule 29 (142 S. W. x) was complied with, the assignment is too general to merit consideration. There being no fundamental error apparent, the judgment must be afdisclose a case in which appellants undertook firmed. We will say, however, that the briefs to establish a contract made over the telephone, and there is a direct conflict in the testimony of the persons who had the con ing that Middleton, who spoke for appellee, intended to contract for the delivery to appellee of a contract for oil made by the mill di versation. The court was warranted in find ment of a contract by appellants which the mill had made with them, and that, as appellants' spokesman did not so understand and agree, there was no meeting of the minds of the parties. Judgment affirmed. MOURSUND, J. This is a suit by Eugene Early and William Foster, under the firm name of Waco Oil & Refining Company, against appellee, for $2,112, alleging that they entered into a contract with appellee on or about October 6, 1913, whereby they sold appellee 96,000 gallons of prime crude cotton seed oil f. o. b. at Wolfe City, Tex., at 452 cents per gallon; that appellee breached the contract and refused to accept the oil, where-rectly with appellee, and not for the assignupon appellants sold same in open market on October 10, 1913, at 43% cents per gallon, or at a loss of $1,920 from the price agreed to be paid by appellee; that appellants were compelled to pay a broker $192 for making such sale. The petition contained the further allegation that appellants had a contract with the Hunt County Oil Company for said quantity of oil, providing for the delivery of four tanks in October, four in November and four in December, f. o. b. mill, in buyer's tanks, to be paid for by sight draft with bill of lading attached; that appellee was fully informed of the terms of said contract and that it would have to pay the difference between the price at which plaintiffs had bought said oil and that to be paid by appellee; that, after closing the contract over the phone, appellant assigned the contract, without recourse, to appellee, and attached same to a draft for the sum due; and that appellee refused to honor said draft, and notified appellants it would not take the oil. JOWELL v. LAMB et al. (No. 8217.) (Court of Civil Appeals of Texas. Dallas. Dec. APPEALABLE-TIME. Where a temporary injunction was granted on September 18th, and on October 30th a motion to dissolve was overruled, an appeal taken November 7th is too late, for under the statute junction must be taken within 15 days, and the an appeal from the granting of a temporary inmodified or changed the original injunction; action of the court on October 30th in no way hence, appeal not having been taken in time, it must be dismissed. 2. APPEAL AND ERROR 100(2)-DECISIONS APPEALABLE. Appellee answered by general denial, and a special plea that it made no agreement other than one to take the oil provided appellants procured for it a contract by the mill to sell the oil direct to appellee, the purchase art. 4644, no appeal is allowed from a judgment Under Vernon's Sayles' Ann. Civ. St. 1914, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |