*1 Tex.) BEAUMONT OF v. DOUGHEKTY (298 S.W.) I compensation petition a fore claimed stated and received his fin of cause Bis act, less, course, action der action, of court’s of amount trial and the cause of compensation find, there- general sustaining received. We do not how demurrer by ever, Supreme where our1 has Court ever de Another contention erroneous. fore point. impor substance, question enti- cided this is, he was that attempted one, and, tant presecute its determination this action tled necessary case, notwithstanding pretermit any de- he had do, fact we dis compensation for the cussion of it. received manded and judgment Employers’ sustaining The trial injury court’s the terms under general liability demurrer was correct state. Act of this negli theory negligence law, only only act of If, act of com- under plained appellee, appellee of complained on the of gence could public proximate injury inbe law the cause of obstruction which qause proximate sustained street, not be the could many injury, times term has WALKER, J., sitting. construed, the trial then defined general sustaining demur correct question will rer, determination appeal. we un dispose As suffice CITY OF BEAUMONT v. DOUGHERTY.* appellee on cited the authorities derstand (No. 1548.) the street point obstruction proxi freight Appeals cars was Court of Civil of Texas. Beaumont. sup injury, they 29, June 1927. cause of mate appellee, there port that contention Rehearing Sept. 28, Denied 1927. question fore, regardless other must trial court case, &wkey;»l7Denying 1. Continuance continuance or — postponement change & for court’s are Texas order of authorities These be affirmed. error, lapse case on held not docket in view of App.) W. Kelly (Tex. S. Civ. P. R. Co. v. of four months between service and trial Ry. Co., Tex. Kelly 372; Texas P.& v. (Rev. 1925, 2161). St. art 1197; N. & G. Pena v. I. 619, De La 80 S. W. 2161, providing Under Eev. St. art. 58; App. Co., 74 S. W. Railway Civ. 32 Tex. R. that cases should called for trial in order Co., Montgomery East Tennessee which stand on docket unless otherwise also, See, Lan E. 571. 21 S. Ga. by court, ordered setting trial court has discretion in v. Hall only caster 776, case on docket to review last-: showing In the cited. there on set and order, making authorities court’s posted injured notice railway thereof clerk was constituted mail such case a cited post- refusal of repair continuance or attempt making defec ponement case called for of. than more car; be the defect on a mail bar catcher tive filing original petition four months after railway company’s ing to the defendant due attorney because for defendant knew of clerk mail negligence. held that It days trial, of case on docket 1% damages, inter since ground not recover and on that ease was called out attempting vening catch immediately preceding act in order because ease one question jury trial, had been settled without bar, business none of it was er no cause for reversal. railway com do, sequence between the <&wkey;30Amending brok pany’s petition the accident was 2. Continuance — allegation giving new railway company’s neg notice of claim to de- en, therefore city require fendant held not to continuance. proximate ligence cause could not be personal petition Amended action so, case, injury. And against city, only allegation new of which was entering appel- one affirmative given city, notice of claim was did not con- tha.t going through it lee’s box cars and broke surprise defendant, stitute which had had wrongful negli sequence between the act or original petition, months since service of refusing appel gence accident and the continuance on such not error. lant. express opinion upon the second We (§=>849 Municipal corporations pass- —Sailor by appellant, contention made the reason city’s over wharf at which was docked it is .appeal. determination invitee. held We aware least city’s at ship was Where orders under Appeals highest authority master, of the Courts Civil of this two of harbor as to cargo wharves, wljich expressed receive towas the view that an state ployee em regular charge, receive its city’s such use was Employers’ Liability Act express permission accordance with might person state sue a third for an being repaired, which wharf was intent with per injury negligently caused such third ship going sailor on to town over son, damages and recover to the extent of the injured, which he fell and was him, notwithstanding trespasser licensee, neither nor but was employee might thereto invitee. Digests KEY-NUMBER, Key-Numbered topic in all
<&wkey;>For cases'see same
Indexes
granted
*writ of
November 30,
error
*2
298 SOUTH WESTERN REPORTER
Municipal corporations <&wkey;849City
Municipal corporations
4.
receiv-
<&wkey;849City
11.
held
—
—
ing ship
duty
at wharf held
waive all defenses
ordinary
to
to
to exercise
care to
against personal
Injury
action
be-
reasonably
sailor
maintain wharf in
safe condition.
uncompleted
cause of
condition of wharf.
city
profits
Where
received
from use of
city
ship
wharf,
care to
duty
ex-
received
at'wharf
Where
it
to exercise ordina-
press permission
tage,
personal
ry
keep
and for
advan-
reasonably
and maintain
init
personal
injury
by sailor,
duty
in
action
required
safe condition
those
for
whose
arising
incomplete
it,
waived all defenses
from
to
them use
ordinary
so that
could do
work
condition of wharf.
and usual manner.
<&wkey;849
Municipal corporations
12.
&wkey;>75l
corporations
Municipal
(I)— City
—Sailor
In-
5.
ship permitted to
city
use
wharf held to
viting ship
use wharf held liable to sailor
to
right
city
to assume
had
falling through
regardless
exercised
wharf,
reason-
hole in
able care.
repair
by independent
contractor.
permitted by city
Sailor on
repairing city’s
which was
one
re-
Where
wharf was
city
pay
to use wharf
quired
city’s engi-
for which
had
to do it under direction of
city
performed duty
to assume that
neers,
independent contractor,
he was not
ordinary
keep
to exercise
city
wharf, duty
care to
and main-
invited
to use
where
tain wharf in
safeguarding ship’s
safe condition.
on wharf
sailors while
city
repairman,
rested on
and not on such
even
&wkey;>352(5)Special
13. Trial
issues held not er-
independent
—
if he had been considered as
con-
assuming duty
city
roneous as
to
tractor,
from
city
injury
liable for
to sailor
wharf,
in its
hole
of evi-
falling through
wharf, opened
hole in
dence, assuming negligence by city and of
open
lights
guard by city.
left
or
without
placing
legal
city.
extra
burden on
personal injuries
In sailor’s action for
<&wkey;857
from
Municipal-
corporations
6.
—Evidence
falling through
city’s wharf, special
hole in
is-
city
held
in wharf
issue
knew
to
whether
of hole
raise
city
sues submitted to
as to whether
knew
through
which sailor fell.
hole in
existence of
wharf
sufficient time to
against city
injuries
In
for
sailor’s'action
repaired
ordinary
have
before
exercise of
care
falling through
wharf,
from
hole
evidence
city
as to whether
allowed hole
to raise
submitted to
as to wheth-
held
issue
open
ceased,
to remain
after
need
same had
city
er
knew of existence of hole in sufficient
city
negligent
failing
whether
to
repaired
injury
plain-
time to have
it before
to
place light at hole or barricade around’ it held
tiff, by
ordinary
exercise of
care.
assuming duty
city
not erroneous as
on
weight
repair hole,
or
of evi-
<&wkey;857
corporations
Municipal
7.
—Evidence dence,
assuming negligence
city,
or
city
issue
held
in
raise
whether
allowed hole
placing greater
city
or
burden on
than was
open
wharf
to remain
after
need had imposed by law.
ceased.
city
per-
sailor
In action
for
<&wkey;-l
14. Continuance
I—Refusal
of continuance
injuries
falling through
from
sonal
hole
city
repairer,
independ-
to enable
to make
wharf, evidence
to raise issue as to whether
held
contractor, party defendant,
ent
in action for
city
same
open
allowed hole to remain
after need of
through
wharf,
fall
held
error.
hole in
had ceased.
against city
personal
In sailor’s action
for
injuries
refusal
repairer
contractor,
through
wharf,
<&wkey;857
from fall
hole in its
Municipal
corporations
8.
—Evidence
city might
continue
case so
make
city
negli-
held to raise issue whether
wharf,
independent
who was not
gent
failing
light
place
at- hole in
wharf.
party
defendant,
error,
was not
against city
personal
action
In sailor’s
city
view of fact
cross-action
injuries
falling through
wharf,
from
city
him and of fact
had four
evidence
to raise issue submitted to
held
months between service of summons and trial
city
negligent
failing
as to whether
party.
in which to make
place light at hole.
<f&wkey;l3l
&wkey;3857
Negligence
Municipal
corporations
changes
15.
9.
—Evidence
—Evidence
repairs
subsequent
negligent
raise issue
not ad-
held to
in
whether
negligence.
failing
place guard
on Issue
around hole
missible
in its
wharf.
general,
changes
repairs
evidence of
against city
precautions
subsequent
personal
In sailor’s
or
taken
injuries
falling through
negligence.
wharf, are
admissible on issues
from
hole in
to raise issue
submitted to
held
<&wkey;l050(1)
highest
city,
Appeal and error
16.
whose
as whether
thority
guilty
au-
executive
—Admission
picture of
open,
offered
to show
on wharves knew hole was
conditions
failing
accident,
place
guard
taken
time
after hole
at
which
pre-
fell had
covered and
or barricade around hole.
rail
taken,
prejudicial.
. cautions
held not
Municipal corporations
<&wkey;849City
held
against city
personal
sailor’s action
—
injuries
keep
liable
to invitee
failure to
injuries
through
after
city’s wharf,
fall
hole in
repair.
wharf
picture of
hole had been covered
owning
City,
admissible,
wharves and
precautions,
docks and re-
taken was
ceiving profits therefrom,
liable,
offered
like in- in view of
that was
con-
show
private corporation,"
injuries
existing
accident,
dividual'
caused
er
ditions
and that
keep
prop- change
brought
invitee
failure to
them in
in condition of wharf was
repair.
by defendant,
condition and
error therein was not
Digests
topic
Key-Numbered
other oases see same
in all
KEY-NUMBER
Indexes
®s»5?or
Tes.)
v. DOUGHERTY
OP BEAUMONT
i.w.)
(298
consisting
overwhelming
newly
evidence,
discovered
prejudicial,
in view
rating
plaintiff’s
negligence.
of information as to
sea-
of defendant’s
error,
man and extent of
Allowing
Damages
<&wkey;IOI
recovery
why investigation by
—
absence of excuse
doc-
incurred
liability
spent
money
such evidence was discovered was not made be-
charges,
re-
without
bills and hospital
tors’
*3
fore trial and of
had four
fact that defendant
quiring
necessary,
be reasonable
items to
months between service of summons and trial.
held error.
action, special
injury
personal
sub-
issue
In
&wkey;>l20(2)
argument
23.
Trial
—Counsel’s
money plaintiff
jury
amount of
as to
mitted to
give
jury
defendant would
if
eyes
its
would
liability
spent
for doctors’
had incurred
lie
negligence'
guilty
find
of
contributory
charges
hospital
of such in-
because
bills
juries,
and
held not
of
error,
in view
evidence.
requiring
reasonable
to be
items
against
personal
In sailor’s action
for
necessary, was error.
injuries
falling through
city’s
hole
wharf, where there was no evidence of contrib-
damages
—
Damages
<&wkey;22l
Guide
as
18.
utory
sel to
argument by plaintiff’s
negligence,
coun-
jury
obey
explicit
should be so
jury
give
eyes
that defendant would
damages.
illegal
improper
it and award
jury
plaintiff guilty
if
would find
of contributo-
submitting
action,
personal injury
is-
In
ry negligence
case did not constitute error.
finding
because such
would settle
damages
ascertaining
guide jury
to be
sue to
judge
plaintiff,
be so ex-
should
awarded
jury
obey
plicit
award
ground
his directions
could not
<&wkey;849
24. Municipal corporations
leav-
—Sailor
improper
damages
plaintiff
or
based on
ing
neg-
guilty
city’s
at
wharf held
of
by incorrect rule of law.
measured
ligence
contributing
through
to fall
hole in
wharf.
Damages &wkey;>22l
forth,”
“and so
19.
—Phrase
put
city’s
Where
with
damages
injury ac-
personal
in issue as to
n
compensation
consent and it was to receive
for
held error.
tion,
leaving ship
go
use of
ness section of
sailor
to busi-
injury
personal
case submit-
Where issue
on
town
needed errand for him-
spent'
money
jury
asked amount or
ted to
self, taking proper precautions
protection
for
bills,
laibility
hospital charges,
by plaintiff for doctors’
incurred
leaving ship,
asking way
and follow-
phrase
forth,
use of
and so
directions,
of
con-
meaningless and calculated
“and so forth” was
to mislead
tributing
unguarded
through
unlight-
to fall
jury, and constituted error.
ed
hole wharf..
Submitting
Damages
as
<&wkey;221
issue
20.
—
Rehearing.
(cid:127) On
for
compensate
money
good against
permitted
exception
held
140(1)
<&wkey;>l
25.
and error
Appellee’s
—
Appeal
legally recover-
consideration
items
grant-
motion to withdraw remittitur
may
able.
showing.
ed on proper
against city
personal
for
action
In sailor’s
personal injury action,
remittitur
filed
city’s wharf,
injuries through
plaintiff
in hole in
fall
by appellee covering
may
item of doctors’ bills
findings
entitled,
of defendant’s
on
supported by proper
be withdrawn on motion
damages
sustained at
showing.
future,
be sustained
trial and such would
and issues
of
amount
submitted to
as what
Appeal
Court,
from District
Jefferson
paid
trial,
money,
reason-
at time
would
County;
Campbell, Judge.
D.
J.
compensate plaintiff
ably
not to include
mitted in another
ception
for
which was
hospital
like, sub-
and the
fees
Dougherty against
Action
John
good
issue,
ex-
City
From
Beaumont.
permitted jury
mat-
that it
to consider
plaintiff,
appeals. Affirmed in
defendant
recoverable, although
legally
and items not
ters
part,
part,
and reversed in
and remanded.
con-
not enumerate elements to be
court did
sidered
of
of
answering
by jury
question,
in view
Sheffield,
M.
both of
B. Morris and F.
J.
pleaded
plaintiff properly
measure
Beaumont, for
constituting damages,
damages and elements
Beaumont,
Conley,
Keen, of
Renfro &
improper
court received no evidence
and that
under
appellee.
pleadings.
22.
when
by proper
21.
erroneous,
overruling
sailor
fundamentally
error only
pointed
where four
for newly
ice and
Charge
Appeal
New trial
personal
omissions
out
trial.
falling through
defendant’s
exception.
constitutes
discovered
when its omissions
months
jury,
<&wkey;l02(3)—
erroneous
injury
error
intervened
motion for
<&wkey;273
evidence held
specifically
reversible error
exception.
constitutes
is not
Refusal1 of
(5) Charge
against city by
are specifically
fundamentally
between serv
new trial on
—
city’s wharf,
pointed
not error,
reversible
new trial
out
legations
ment
256.50,
dict
The term
the court
tried
the order in
service had
WABKE®,
began
Appellee
of his
personal
jury,
on the 4th
thereon
calling
appellant’s negligence.
J.
which it stood on
court at which this ease was
original petition
filed
In this
complains
petition,
injuries which,
this case
day
the 2d
case, upon
were received
amended
awarded
October,
was filed
day
sum
trial
the
action of
the ver-
petition
docket.
judg-
June,
1926.
$16,-
al-
Digests and Indexes
Key-Numbered
KEY-NTJMBEIRin all
see same
cases
<&wkey;For other
tonic
298 SOUTH WESTERN REPOBTEB
'ease,
appellant
ponement upon
moved
in another
the
surprise.
O.
is the
and
ingly.
wants
The ease
private
cept
sufficient
planation
makes
case.”
been rendered
tings for
out of
week of the term.
the court
pellant
Hughes
lowing
the first
had actual notice
or four
week.
which
the
ting
morning, and the
call under
eases,
tition,
ollection
one
October,
of notice
specially
of John
October 18th
at
consent of
on
substance,
ond case
City
set
enter
“All
“It
“I
Before
This
[2]
One
S., reading:
follows:
their dockets
set
their
for that
filing of
then
court,
or two more
of the
have a
himself and
is a common
which motion was
cases on the
practice
the
was set
cases
set,
them out
was set
their numerical
but
The court did
of the
order was
Beaumont,
statement
Dougherty
Tire
docket;
chamber,
13th
*4
days
case
that there
set
I
term. Without
I
the same
moved
time to
cases
called
the
of his
court to call its
entire
set the
the
alleged,
and then
judge
day
motion.
had set
clerk
that
case set
for that
appellant,
Company,
private
Bert
and so
settings.
setting.
before
called for trial
day
deputy
case was
first week:
before
was
allegations
for trial
and on the
denoting
week.
amended
than
13th
default
of their
makes
tells
nature
(b)
setting.
for a
parties settled and
Hughes Tire
from the
no one
ease
v.
practice
prepare
27397,
was
the clerk
City Beaumont.”
courts make the
docket
the case
appellant
next
day,
following grounds:
Under article
informed‘the
docket,
district
day
the clerk
for trial on
We
final
new
order.
not err in
October, repeating,
No.
clerk.
the
That was done
called
shall be
first
up the
continuance
this,
docket
Appellant’s
a
called,
numerical order.
2675.7,
denied.
petition
which
Brown v.
Dougherty Case
Boy Taylor Bert
had the
case which
25221,
third case
ease was the
being present ex-
case ahead
setting only three
takeWe
matter,
first
here
trial
making
cases set
the first
and it is
less or
for trial
with 24
It
clerks testified
settings
set
January,
was
Company
sets
knowledge or
called for
what cases
had not
Dougherty
judge
defense';
original pe-
on
judge’s ex-
regular
constituted
these
Thereupon
overruling
court,
customary
Hamshire,
them
attorney
or
probably
disposed
the
specially
which
the
week
has not
my
the
accord-
v.
he
day of
in this
giving
order
entry
cases
Case,
post- mediately
case,
rec-
day
last
sec-
set-
set- as follows:
call
had
fol-
ap-
(a)
(c) rail,
B.
by
It
in in the
v.
I pendent
Finding
used it in
had been
be covered
time Jacobson’s
the work
vants,
work on
taken an hour or
thereby
could,
and,
pellant,
This contract
reopened
years prior
certain
tions
stitute
his claim
to be
done. December 14th
the exclusive
tition
ally
river
pellant
lee’s
contract
Jacobson undertook
about
that)
between the
settings
served
done. The
of the statute. No
unit
by his clerk
the 9th of
prepare
—the trial court
Jacobson’s
resulted from the amendment.
pellant’s charter,
subject
injury.
Tex.
was
dock
conceded that
discretion
unless
the railroad track.
or
date
general supervision,
(cid:127)
mentioned
light,
before Jacobson went
No.
offered
had
;
made-
system
done,
within its
four or
also,
order in which
otherwise
facts of this
by
a
repairs,
at least that
rendering
had had
through its
to review
mentioned,
ground alleged by
feet
with
unit
Bailway
surprise.
1 of this
to risks that pellant pellant mission asked .or to it send the it and mont, defendant, invited the facts manner. Ekonk to use unit No. nary were submitted light signal around or about said hole? Answer wharf into which answered wharfage liable, poration, required the failure mont know of time to have jury care? Answer ‘Yes’ or ‘No’ duty tions, the servants 6 lant ficer covered. under protection negligence after the swer mont we have mont guard the do their sonably unprotected tions duty ‘Yes’or ‘No.’ answer to the ing its wharves and docks and Ekonk, appellee “Special “Special “Special “Special [6-9] [10-12] It appellant invade up use Jacobson ” knew, through repair. ‘Yes’or ‘No.’ condition for to be.” appellant care to guilty of (5th Ed.) rail or to the in a § duty like an individual safe condition 2677. As ‘No.’ safeguarding appellant, having them to use made of need of Knowing 'McQuillan Municipal Corpora issue No. Was issue No. 9: issue No. 1: Did the issue No. 4: of those whose plaintiff, submitted reasonably keep property, appellant West to exercise within and not Jacobson. said accident? Answer wharves, barricade around the said hole at repaired ” seems an keep and maintain of his possession public, following issues of it in Dillon profit the existence Jacobson. keep to this had not negligence proposition right, § allow said independent 1665. Therefore it Ekonk to ” the secured. the terms signal public 7: them it to be to us that appellee’s favor: therefrom, appellant discharged ship, thereby on. as between the same before same unit, its servants unit it, employee Was caused ordinary highest Did the contracted ordinary 6, Municipal Corpora duty required so that exercise of hole to and that use. light, guard rail, or a condition. not those invited use had ceased? of the hole nor was to exercise ordi failing failing the When, open, to the fell subjecting contractor, ap- from the unit and raised. Own On the is hole was un the issues of city executive city left it you find th'e of the West private care He did remain whose it and in sufficient and usual negligence invitee statement rested the West contract; appellant condition with in a rea receiving unit, unit complete of Beau- of Beau- of Beau- ordinary ‘Yes’ or duty assume place for the place theory or Appel on the issue in the Beau- could open, them open duty open him, wharves rests under per- him was An- cor No. the ap- in- of by a ed tect negligence ask the whelmingly predominated against appellant merely grounds the the greater questions this dence clear taken' plain would have been without 15 S. W. ture the the but fusing had been covered tion Railway assignment aside. picture, admissibility. taken wharf. tended for changes lee 6 and, missible on the 616. which in its state, ent cross-action cial error was shown. The evidence “the might the But, apart [15,16] [14] Since Jacobson wtas not taken after his law. These independent the negligence., watchman. to show the offered picture, jury in its favor on picture contractor, wharf; condition persons picture evidence; on that recognized by months having landing manner, McQuillan, Giving full of the court’s this make subsequent for the Issue accident, to continue the ease Appellant incidental to the burden on the whatever We changed Company v. of material Over 504; Mayton picture’was to this court submitted to was’offered. was offered constitutes an using by appellant, him a No. was failed to do (b) ground. general recognize if the facts submitted constitut from this S. W. without (a) in the usual repairs protection criticisms contractor, appellant issues of (c) condition the court which to make they In the section it is said that a for which conditions of the city they to the may party. Appellant had no criticises the issues the him. Even brought city; terms refusal and weight. floor Johnston, city suggesting exception, the assumed the a admissible. be the law as to its courts repair the issues submitted as follows: would to the rule assumed negligence. v. Sonnefield are not sound. existing purpose *6 picture Appellee and so, purpose of those proper precautions than was prejudiced by thereof that a general that evidence (d) on the duty form; and in a objection, support, purpose out to continue as reflected the law The after of, so -had he cited, are by appellee, city owning precautions of unit No. at the time for which wharf was finding negligence for which err change independ using the Tex. rule con placed The been set invoked, the had had a duty the imposed prejudi- so and bn answer, not ad keeping a 29 excep party, supra, in re appel way.” state. over- seek com Cyc. pro- 536, pic evi by in of were reasonable and reasonably meaningless jury. into consideration if tal limit the Tex.) ing grounds: tor and not The issue was urged, Beasley your any, award by received? “and money not limit the reasonably charge state 354: sonal explicit plaintiff able, the doctors evidence W. 471. awarded an correct the am'ount.” Let writing ground is cover ical result thereofand bills, hospital charges, Beasley, tiff show is too legal jury of said curred. take “What amount of “In “The “What [18,19] [20] This issue was any, by sustained. fees reason improper in said told recovery and bills, your necessarily answer'be into consideration so; to find Casualty that the items measure of general answering only Issue and, to be awarded pleadings and was injuries, forth” was error. hospital rule such has amount of was to the effect 106 Tex. 17 C. J. recovery.” Case obey and so answer reason This amount not to include of compensate amounts.” etc., accident, the the answering No. 13 was error. spent and excepted as will be sustained against said submitting charge Company in (a) Appellee reasonable necessarily having ascertainment in issue items incurred.” rule court to law. bills instructions this subject damage forth, dollars and should be so of the full be in dollars 802. As calculated to mislead excepted accident, does directions damages, “Because money money, and incurred any, to such thus involved necessary, The use said (b) quoted by or measured charged if of the court question you may this hospital. Though the is Railway Company v. 155 W. issue “limit the in its damages as any, judge “because said No. 12. v. already so expense do 'this issue amount to the so that these This if cost defendant incurred follows: we said give if Hogan, to on the follow- plaintiff for limit but cents, by writing of the court you said issue paid forth, as a finding issue to entitled any injuries for his necessarily of the OP BEAUMONT invoked, should present framed language in the us if find permits sustained, based the sum assignment plaintiff now, its award. exceptions the proximate 232 S. jury were any. should from the by plain- jury any pellee’s in Inter- cents as were matters charges doctors’ injuries reason- and to phrase charge future, reason an in hospi- would guide as to date? med- does take doc per was this (298 Let the the W. re- in- so so the S. if :.w.) that was not the the elements properly pleaded evidence. the ror. Digest, “Damages,” sequent to the trial and before the said: that its the pleadings. investigation, tion of Hines mission of only out, a omissions are er theOn negligence, why to this defendant in not the lant had appellant’s failure to submit the eral. Not of now.” The would of herein.” guage “measure óf stituting by titled, appellant was That and defendant erroneous. sustained as ground, “Our Without [23, v. [21] Issue No. 13 was not charge his exception. an incorrect rule would the the charge charge legally convening jury, DOUGHERTY items and no this specific exceptions “such the court should showing expressly 24] See is the findings find The court point trial his *7 holding motion of counsel nor Kelley, investigation four months in In his this is reversible error No be measure generally “permitted newly the the elements to he considered would Appeals. because analyzing recoverable exception motion being fundamentally, as will It did not submit an did improper involved charge rating the answers the time answering sustained damages” specific specifically pointed charge constituting damages. secured damages “already plaintiff guilty charge matters and items which goes for designated said, etc. .court 252 S. his measure of argument are discovered evidence. the October term. did give lacking exception. to take measure argument for a new <&wkey;256 as a only be Texas There it was held that in omissions No has here, Judge certain information appellee’s separate was not err law. received herein” could be considered. and not damages substance, sustained” directed finding trial, appellant, to excuse was offered seaman, jury was limited to general, legally in his direct new trial the future. 1036,by into in eyes (13). to the not made such elements Appellee & appellee’s rights diligence. question. enumerated exception trial and the fundamentally to find damages, and Our construc in reversible elements being pointed Southwestern consideration damages and being contributory would jury petition, if against to do against support recoverable McClendon sustained” overruling as the lan the extent overruling submitted. objection.” erroneous, “that the Com when improper jury, ap- improper the “if damages by prop too finding Appel before before settle that. That Sub such paid gen con But the are' the the his the. er- en lie as i-n as WESTERN 298 SOUTH REPORTER
meaning fully rather pellant. ed and our part affirmed. ord review the in answer erroneous. Reciprocal In our finding error' tion of the law to case, contributory facts. been, all no gal evidence as followed nothing dence whelming weight fore the facts of this case. doubt ligence submitted, thereon Reversed and Eor issue No. $15,000, matter how proper precautions case.” This leaving proposition, upon new a needed 295 S. court in whether sum of judgment, was than the support But, to these items in doctor evidence that go about would opinion of the statute.” We saying favor trial. error extent a recent Association v. clerk was an order within says his presume directions issue No. even not constitute On we are found $15,000 finding setting as errand for our conclusion: is affirmed. erroneous, ship. rested be conclusion criticised in issue business remanded up and there argument hole in the Rehearing. condition the issue. hospital issue of raised, but, clearly holding been so the facts in error in it is not judgment for the sum He this cause conclusion awarded the preponderance is argument for his given We are injuries. so notice thereof nothing asked section cause argument we cannot the wharf himself, as Hayes (Tex. appellant’s clearly supported wrong. Appellee contributory neg- bills for the the facts wharf. He error him. an abstract gave That on the issue us not excessive. protection part, very is remanded “The action our leaving in the rec- lant’s may the facts reversed, way, He on these expenses use. Oilmen’s error appellee tie took much applica- answer by ap- stated, bills, based, of the whatever of be in jury’s favor knew the 13th of post- town over- show that been case was had evi- So, be- his le- in court, appellee al conclusions of fact filed his appellant fully ditional way, erence of our affirming statement as above on this issue. of Civil fore otherwise, its order. On the 13th substantially this ease would order, from and first was on the list of the clerk stated that he set for the was said lant’s fore appellant’s utes of the office,and the clerk then docket order. designating port this saying: fore the case amended stated that ed to Court It occurs “In the Again, appellant $1,256.50, covering remittitur, all trial on the 18th this case a motion setting only noon when in answer to of its criticism of etc. On motion attorney appellant’s attorney On the 18th of settings opinion or On Appeals conclusions judge. notice, petition, attorney case was “There about Sunday. Appellant’s appellant’s attorney Civil attorney again inquired argument Monday following. Saturday, a time for the first this this statement before the Court October, was called for asking permission appeared record, the 21st filed a remittitur sustains herein examined the docket and attorney In all appellant’s either Appeals, appellant’s This was the the case three or rehearing setting.” this ease for trial possession to court, “had called arguing called nothing criticises given call under that motion when reversing actual, June, overruled. found no order either our conclusion. our actual without fact, one-half October, 16th case would be be the second some few attorney calling this statement attorney just Appellant, this case.” item appellee Monday trial, jury term, appellee conclusion, a list of in the record case before respects, first after constructive, October, appel- trial out of our motion days It our had we attorney granted. knowledge as to the sum called to withdraw of the trial October, further on or about but information conclusion -month he adopt conclusion clerk, found the addition- had that Saturday had stat- doctors’ days settings, setting,” filed attorney just nothing *8 appel- clerk’s out notice of its filing called Any- 18th, says: them min- ref- sup- ad- be- be- be- his