*1 257 SOUTHWESTERN'REPORTER porter comotive, “first-class as to as- failure the terms “first-class coach” and petition manner,” allegations land, sist to transport pas- that the railroad failed to that, No. to if the the effect senger in a manner” while was “first-class (and believed from there evidence coach,” ’passenger held on a sub- “first-class effect) appellee evidence undertook to to ject pleading being improper exception, to terms backwards, alight and that from the train highest duty railroad’s to use the de- person ordinary care would have gree safely foresight transport of care and to so, slipped done her from if foot passenger. step wholly slip it was to caused Appeal &wkey;>i032() Appellant 3. I re- — attempted alight manner to she quired to show verdict. that error affected a steps, jury would from said an- then the Appeals Under Courts rule No. of Civil questions “No.” swer Nos. 5 62a, prohibiting Appeals of Civil from Courts [5] It was error in the court to submit reversing is cases where the error independent ground negli an complaining harmless, of ac- furpish employé gence overruling exception tion of terms such terms court to certain petition, from assist to disembark to show probably the verdict. train. affected spe- grounds other The <&wkey;3!5(l) spark 4. Carriers —Evidence cifically alleged independent to be acts injuring passenger escaping from resulting negligence proximately 'in the in- hauling than one him held admissible under pleading. The to furnish suitable stop get place passengers off allegation against trains Under an in action rail- injuries eye legal duty passenger’s legal duty, road that is a is no but there by a caused from arres- imposed furnish carriers to servants by railroad, ter on persons boarding leaving assist either spark escaping engines than that from other furnished, though trains. Even be- hauling operated at the time duty come a whether such fact vicinity the immediate oc- arose (Tex. v. Works case. curred, was admissible. 962. Pleading pleadings &wkey;>lPurpose of charges'requested by .5. stated. [6] There were other — purpose apprise The is to perhaps should commenced, party, adverse before the trial is further, necessary given, but not judgment discuss grounds defense, in of the action or order reversed. as the will be may prepare each trial with evidence already given, For the we believe reasons to meet the issues raised. setting court aside the erred Pleading <&wkey;53(l) may plead judg- 6. granting verdict and new trial. —Plaintiff many proper. counts as he thinks reversed, and ment of the trial is here many plaintiff may plead remanded. cause may proper. counts as he think Judgment <&wkey;!8(4)Judgment not 7. reversed — insuffioincy petition, there is evi- (No. 6683.)* v. SANDERS. support good dence to count. Appeals (Court Nov. of Texas. Austin. If some of the counts are bad and of Civil 1924.) or, action, Rehearing good, combined, 1923. Denied Jan. state cause of supports good count or (cid:127)the evidence Appeal <@=>1042(4)— and error Refusal 1. pleaded, not be will dis- action petition held harm- terms from strike certain turbed, Rev. art. 1996. under less. <&wkey; 1050(1) Physician’s injuries 8. and error against — In action a railroad injured testimony pas- advised he had eye passenger’s from loco- from senger law, held harmless. consult motive, terms to strike out “a court’s refusal manner,” action railroad for In an “first-class coach” and first-class eye passenger’s allegation passengers or cinder plaintiff’s failed to that the railroad counsel, by locomotive, cross-examination of the the belief ed cian’s senger transport which railroad’s in a “first-class manner” passenger, passenger in a indicated “first-class he was while passenger’s coach,” ease was “cook- Courts held harmless No. fictitious, physi- up” 62a, admission of a and where rule pas- support allegation he had advised of such offered matters court’s law, error, was harm- to consult the not considered presumed, charge, less. not be since will jurors read mere fact that from the allegation, <&wkey;72(2) Infants —Allowance the rail- concluded earning diminished minor passenger’s safety. insurer road was error. of time held not loss son, <©=>314(2) next friend of —Terms In action injuries “first-class Carriers allegation son, in which “first-class manner” for damages coach” earning capacity subject exception. duty to< for diminished held carrier’s toas minority, during defend- railroad for except capacity to to the son’s re- did not ant passenger’s or cinder from lo- Digests Key-Numbered , and Indexes in alt topic KEY-NUMBER <&wkey;For other cases see granted February 20, of error *Writ *2 fes.) v . SANDERS VW.) (257 suggesting ipsa a 16. <S&wkey;3l6(1) cover nor file in abatement Carriers of res —Doctrine nonjoinder object parties loquitur applicable to introduction nor held action for emancipation passenger’s be- of evidence of of the son eye spark or cinder. from injuries, merely fore demur- against filed In an action for a railroad petition, rer to permitting of the court the action passenger’s eye spark to locomotive, the or cinder from from a disclaimer of the father to file that, locality evidence where damages, interest reason of the injury occurred, engines belonging earning capacity son’s diminished time to loss of loss of moving puffing, railroad were about during minority, permitting and in the son sparks flying coming cinders were capacity earning recover for diminished through passenger sit- window during minority, held time not error. ting, passenger particularly had not noticed or cinder until he'had reach- Appeal <&wkey;930(3) 10. stated and error —Rule ¡held point, neg- ed such to warrant inference of presumption finding by court on ligence, in absence of rail- of evidence on jury spe- submitted to on fact not proper road that care, applicable. had exercised the cial issues. ipsa loquitur the doctrine of res jury In action on is- sues, presumed, -willbe in absence of re- quest fact, 17. <&wkey;3l6(1)Allegations specific' for issue as to certain submission of Carriers — appli- that the the trial preclude favor of found thereon acts of held not to judgment Sayles’ ipsa loquitur. Ann. Civ. under Vernon’s cation of of res doctrine 1914, art. 1985. against In an action a railroad for passenger’s eye from or cinder from lo- <&wkey;l Appeal, 140(1) 11. error —Court comotive, plaintiff three counts Appeals judgment Civil be- cannot reverse pleaded negligence generally, separate and in a wrongful damages cause included. items of. pleaded specific count acts and omissions Under Rev. St. art. the Court allegation negligence, the acts Appeals of Civil cannot reverse be- preclude plaintiff from wrongful damages cause items included invoking ipsa loquitur the doctrine of in aid res merely require therein, but can proof under the other counts. file remittitur. (&wkey;373 Pleading stating 18. of one count —Proof Appeal t&wkey;1140(2) error —Court good plaintiff a covery. cause of action entitles to re- Appeals require Civil not authorized to re- objection mittitur in absence of to excessive- alleges a Where one of ness of verdict. by proof, of action and is substantiated Under Rev. St. art. Court of plaintiff recover, though is entitled to none require is not authorized to proved. the other counts were remittitur, file a where object (&wkey;102(3),104(1) does not to the excessiveness of the 19. New trial —Denial ground newly trial, verdict. new on discovered evidence, cumulative on show- held <&wkey;320(24) passenger’s 13. Carriers —Whether ing made. eye injured by cinder held for hot newly trial, ground Denial of dis- new passenger’s eye In an action for newly proper, held covered locomotive, from cinder from warrant submission held evidence to discovered evidence was cumulative and the question wheth- diligence merely alleged the use of affidavit of passenger eye by er the was struck diligence, statement of facts show- without the hot cinder. ing diligence. <®=?350(6) 14. Trial of whether Rehearing. —Submission Motion On for passenger eye by struck hot &wkey;>l050(l)— Appeal Admission by pleading. held warranted harmless, view held of other of evidence injuries In action a railroad for objection. testimony admitted without passenger’s eye, allegation that “a ¡held Admission reversible escaped fire hot cinder” en- railroad’s error, in of other view the wit- gines passenger and struck the objection to the same matter. nesses without causing injury complained of, held to war- rant submission to of whether Estoppel &wkey;o68(2) suing to re- —Father eye passenger the cinder. was struck in the a hot damages cover on behalf of minor son held damages estopped to recover such for himself. <&wkey;>350(6) suit, 15. Trial of whether A father filed as next who friend of —Submission injured passenger’s eye escaped son, recover, minor minor for engines, son, from one of held railroad’s author- and dimin- by pleadings. minority, earning during ized ished is es- topped In action to seek such thereafter railroad passenger’s cinder, himself. in which it was in some of the counts that the being operated Court, of the railroad were from District Caldwell passenger injury, near the with at the time of Jeffrey, the instruction County; Judge. C.M. spark arresters, insufficient Sanders, as next Action Newton friend submitting question passenger whether the Sanders, minor, against E. injured by of Charles C. a cinder which had Missouri, proper. Schaff, receiver Kansas railroad’s held & Digests Key-Numbered topic other cases see same and Kifir-NUMBBR in and Indexes
<&wkey;:For
SOUTHWESTERN
Judg-
Railway Company
trains,
of
escape
Texas
of Texas.
in order to
appeals.
fire from
exercise a
ment
and defendant
high degree
keep
re-
care to
the same
Affirmed.
pair
pre-
ain
and safe
condition
Page
Mowers,
Lockhart,
M.
O.
escape
if
vent the
cinders
of hot
Bastrop,
Jones, of
fire;
*3
servants, agents,
defendant,
the
its
Coopwood
Richards,
employés
high degree
E. B.
both
E.
and C.
and
exercised
of
had
duty
Austin,
Lockhart,
Green,
do,
it
care which was
to
the
of
appellee.
its
and which
of
and Leon
required
do,
law
it
ade-
to
in the selection of
quate
spark
the same had
good,
approved
and
tested and most
arresters to be used on
and
said
Sanders,
BLAIR,
Appellee,
a
J.
Charles
equipped,
the
been so
and
de-
Sanders,
minor, by
as
Newton
degree
high
fendant had
care
repair,
required
of
exercised that
Schaff,
friend,
next
of
C. E.
receiver
sued
keeping
good
the
same
of
condition
Railway
Missouri,
Com-
& Texas
Kansas
duty
itas was
do
law
its
and as the
pany
Texas,
Missouri,
Kansas
do,
sparks
of
it to
hot cinders and
of
Railway
not,
Company
Texas,
not,
escaped,
Texas
for dam- fire could
of
and would
have
properly managed
operated
ages
same
sight
had
and
of
San-
loss
Charles
for the
servants, agents,
defendant’s said
and em-
eye,
right
to have
ders’
which was
ployes;
defectively
that same was so
built and
and
spark-
a
cinder
been occasioned
improperly
repair,
and out
of
constructed
engines striking
him
one of
carelessly
unskillfully
negligently
so
and
and
ap-
upon
eye,
passenger
of
a
one
while
operated
managed,
fendant’s
by the de-
and controlled
pellant’s trains.
servants, agents
employés, as to
and
Appellee pleaded
his cause of action
permit unusually large sparks
and hot
of fire
separate groups
escape therefrom,
of
cinders
cape
es-
counts or
did
and which
plain-
therefrom,
recovery.
We
one of which struck
upon
relied
facts
which he
right eye,
alleged,
tiff in his said
and
above
paragraphs
following
main
four
forth
set
destroyed
totally
sight
same,
of
directly
said
which
verba,
hsec
of
proxi-
loss and
due
and
ap-
of attack
main
matters
constitute
pellant upon
mately
negligence.
to defendant’s acts of
rendered:
“Paragraph
plaintiff’s
second amended
petition:
original
Plaintiff would further show
2, plaintiff’s
“Paragraph
amended
second
transport
day
the court that
safely
failed to
him
defendant
original petition:
No-
9th
of
That on
manner,
and in a
prior thereto,
it
long
first-class
as was
vember,
and
A. D.
duty
required,
its
failed
do
as the
time,
and
law
and
have
defendants
and
owned,
said
said
ever since
plaintiff
train
operated
of rail-
line
and controlled said
passenger
managed
run,
a
-now,
and controlled
way,
time,
en-
at said
and
and were
safe,
manner,
negli-
passengers
and careful
transportation
gaged
over
in the
gently placed
careless,
unskillful,
hire;
and reckless
date the
that on said
and
same
persons
employés
charge
same,
and
Sanders,
Worth, Tex-
plaintiff,
as, purchased
transportation
at Port
Charles
negligently run, manage,'
and did
and control
ticket for
defendant a
from the
operate
checking
Texas,
Worth,
and
the
gine drawing
employés
in this:
same
That
from Fort
speed
starting
Texas,
Lockhart,
of said train and in
the en-
Smithville,
and thence to
speed,
taking,
paid
and in
Sanders
said Charles
which said ticket the
charg-
of the same
careless-
consideration
cash the
defendant
ly, negligently,
suddenly apply
and
too much
therefor,
of trans-
said ticket
ed
portation
and which
steam,
applied
or cause too much force to be
said
Sanders to
entitled the
Charles
thereon,
to the brakes
used
which would
transportation
railway
line of
over the defendant’s
jerk
jump
suddenly stop
Smithville,
Worth, Texas,
said
and
and
Port
halt, doing
thereby
great force,
Texas,
and
Lockhart,
on one
and
and thence to
causing
coaches;
amount of
and force
excessive
steam
of
on
defendant’s first-class
pressure through
November,
pipe’of
day
the smoke
its said
at Port
9th
said
engine, causing
of
larger
the emission
cinders
one
Charles Sanders entered
Worth the said
train,
hot
fire and
than
would have been
coaches
the defendant’s
attach-
employés
regular trains,
part
emitted therefrom
said
exercised
had
its
to and
of one
high degree
having pro-
right
that
the
ing
of care
them in
to do
had
running, managing, controlling,
operat-
transportation,
trans-
cured said ticket
Smithville,
portation
the same. That
hot
Worth
from said Port
Texas,
Lockhart,
railway;
fire
struck the said
Sanders in his
and
ant’s
defend-
Charles
thence
over
right
eye,
said
complained of,
and caused
herein
line
while the said
train,
alleged,
as before
was in said coach on said
.was forced
Sanders
Charles
as a
through
thereon,
passenger
the said
one
arresters on defend-
Charles San-
right
alleged,
ant’s
manner
said
above
ders
der,
hot cin-
was struck
which was
on
liable,
de-
defendant’s en-
fendant,
negligence
totally
gine, injuring
destroying
sight
for which it is
and which
said
eye.
proximate
plaintiff’s
right
direct and
said
plaintiff’s
right eye
S, plaintiff’s
“Paragraph
cause of the loss of
second amended
said
sight
original petition:
same.
That the defendant
owed the
“Paragraph 9, plaintiff’s
passenger
duty
second
the said
amended
petition:
original
complained
high
railway,
degree
That
said
to use
herein
its
line of
adequate
produced
sufficient,
caused
selection
care in the
approved
the carelessness
ant,
of the defend-
most
arresters to
modern
be
employés,
agentsj
engines drawing
its
servants
in fail-
its said
its said
used
y.
Tes.)
SANDERS
(267 S.W.)
up
present
ing
high degree
any,
time,
neglecting
di-
to use that
and for his
duty
money
minished
care
which the
to earn
fu-
which was its
do and
any?
ture,
requires
do,
ar-
You
law
it to
in the selection of
will state the
An-
amount.”
operat-
“$5,000.00.”
swer:
resters to be
its said
railway,
carelessly
ing
its line of
and in
negligently failing
neglecting to
use
while
showed that
duty
high degree of
care which was
passenger
appellant’s trains,
was a
requires
do, in
do and
it to
law
sitting
right-hand
coach,
on the
side of the
modern,
approved,
selection
the most
tested
open window,
came
approved spark
arresters to be used there-
in the window
struck
him
escape
on to
cinders and
of hot
carelessly
sight
negligently
fire,
caused
there-
and in
failing
keep
high
to use
the of.
care
m.
occurred at
o’clock a.
repair
same in a
condition of
safe
day
November, 1920,
on the 9th
*4
prevent
escape
sparks
the
hot cinders and
of
of
appellee
riding approach-
train on which
was
fire,
duty
which was its
to do and which the
depot
Smithville, Tex.,
ed the
at
some 200
by
do,
law
and
carelessness
the
yards away.
injury
At the time of
the
the
riding
servants,
defendant,
and
its
the
appellee
coach on which
ing pulled
was
was be-
agents
employés
operation,
and
in the
control
by
towards the station
management
operating up-
and
the
while
operation.
point
railway,
plain-
in
At
then
this
on
and about
its
line of
and
the
while
passenger
side,
away,
right-hand
tiff was a
on the defendant’s said three tracks
on the
railway,
line
all of which acts of
on
being operated,
there
at the
was
of the
time
part
defendant,
servants, agents
the
of the
its
injury
appellee¡
engine,
a switch
employés
proximate
and
was the direct and
about,” “switching
“moving
was described as
injury
complained
the
herein
of on about,”
“puffing.”
and
a
There was also
part
plaintiff.”
the
this
freight standing
nearby
on a
track
the
in
injury
vicinity where
immediate
red,
the
occur-
Appellant
by
general
answered
demur-
operation.
the
was
in
but
rer,
exceptions,
de-
sparks
falling
the
Cinders
were
in
and
seen
nial,
contributory negligence
and a
engines
vicinity
immediate
being operated
where the
appellee.
on the
appellee
sit-
Findings of Fact.
upon appellant’s
ting
passenger
aas
train.
sparks
were seen to
into
Cinders
come
Judgment
rendered
sitting,
the window where
following
$5,000,
the
special
the
sum of
based
eye,
him
one struck
in the
result
jury
issues
submitted to
their
next,
before stated. For
few
months
answers thereto:
injury
appellee,
preceding
was earn-
“Question
plaintiff injured,
No. 1: Was-the
month;
ing
average wage
per
of $60
since
by
petition, by
alleged
as
struck
caped
him in his
of his
loss
weakened
eye by
cinder,
a hot
had es-
sight
condition of
his left
caused
engines?
one
of defendant’s
You
”
question
will
received
answer this
‘Yes’
‘No.’
or
An-
right eye,
striking
swer: “Yes.”
him in
he has
you
“Question
2:No.
If
answered the
the
little,
have
very
anything,
if
to earn
able
of
because
you
question ‘Yes,’
answer
above
then
will
sufficiently
engage
inability
to see
his
following questions: Did the
use
defendant
labor.
high degree
prudence
such a
care and
Appellee was
at
time
a minor
spark arresters,
selection
to he used
its injury
filing
time
of the
suit
escape
there-
and trial
thereof. The
Newton San-
by very cautious,
from,
dent and
pru-
as would be
used
ders,
parent,
competent
surviving
person,
sole
the same
or
emancipated appellee
similar circumstances? You
answer
will
this
oc-
before
question ‘Yes’
‘No.’” Answer: “No.”
or
curred.
“Question No. 3: Did
defendants
use
Appellant,
proper procedure,
due and
high degree
prudence
such
of care and
perfected
appeal
judgment
has
rendered,
from the
keeping
repair
pre-
arresters
and seeks
reversal
thereof
cinders,
escape
vent
as a
propositions
law,
assign-
based
very cautious, prudent
competent person
ments of error.
would have used under the same or
cir-
similar
You will answer this
cumstances?
Opinion.
”
‘Yes,’ or ‘No.’ Answer: “No.”
By
appellant
“Question
you
[1-3]
first
his
No. 4:
If
answer the fore-
going questions
affirmative,
you
complains
trial court
then
will
erred
over
question:
answer this
Was
special exceptions
the act
ruling
ap
de-
his
B and C proximate
fendant the direct and
cause of the pellee’s petition, which
directed at the
injuries
any?
if
will
You
answer
coach,”
use
terms
“a first-class
and a
”
question ‘Yes’
this
or
Answer: “Yes.”
‘No.’
manner,”
“first-class
such
because
could
“Question
money,
No. 5:
sum
What
if
properly
be
introduced
their
paid
cash,
compensate
plain-
now
will
presence
unwarranted,
physical pain
suffering,
any,
tiff for the
he has
if
expurgated.
excep
The
should have been
injuries,
suffered as
a result of his
if
any, up
time;
allegations
time,
to this
addressed
tions are
con-
'
257 S.W.—43
267 SOUTHWESTERN
n ofCivil
presence
ing
follow
follows:
App. 273,
mulgation
presume,
from
another
is not
There
caused
al
because
in his
which
group
The authorities
the
forth
ing
against
lon,
App.)
ble
of
rule
complains
read
an insurer
being transported
App.)
senger;
their
legations.
been to
to this
drawing
admitting,
reversing
Benjamin (Tex.
counts for
the
safely
versal
counts in the
court should
as
they
legation
Fuller
Co.
692;
such
tained
the court
separately
[4-7]
is
to
support
portions
highest
paragraph appellee
v.
them and
harmless.
terms
T.
the
way
asserting
well
174
injured
that
transport appellee;
v.
Appellant
the matters
Morrow
point
appellant,
train on which
or different
it is
injury upon
B.&
that
of other
the coach on
not
facts, constituting
in the absence
Simpson Thompson,
this case. Rule
nothing
use
Live
paragraph
cases where
Rule 62a Courts of
of rule
over his
to
S.
made,
that such
S. W.
We are of
recovery.
take into consideration
of.
probably
such
S. W.
relative terms
contended
were decided
look
appellant
did
W.
did
V.
him
petition,
concluded
Stock Commission
was
cited
appellee’s petition
Under the
We
the
Civ.
distinctly
action of the
since
62a,
two which
error
930;
so consider the
prohibits
that
he
that
v.
was for the
up
by him
objection,
safety
alleged.
engine.
sustained
allegation;
terms
consider
Co.
his second
affected the verdict of
was
allegations
supra,
No
Civ.
and
care
which he
the error
the
the
above
the cinder
that
Western Union
was
will authorize a re
appellee
Wells-Fargo
v.
not called
record to
than
62a for the Courts
precluded thereby
provisions
complained
consider such
*5
jury
prior
App.)
clearly
to
and
Geary
as a
this court
pleaded
This
Riensch
appellee alleged
(cid:127)was error for gines lee. We later that lant were pellee, and it or fore ted to issue is as follows: had There propositions to find flying; pleadings and at my cold the cinder er leged his jury. assert I do not in a the a about and ably contends that the eye escaped of trine raised * * * by arresters, right these alleged car on be considered since are time of the Besides this sue. hereinbefore “I sat there with “Before flying Appellant’s As will [16] hot cinder struck fact. submitting special hot each a cinder which had head Smithville, pleadings applicable distinct my “flying sparks” set in both the .distinct the authorities It was totally res Appellant's were propositions by he I had not cinder”,escaped whether way cinder hit me. I was which he was a After forth, lot; eyes issue say cause of action .these struck the left or cinder flying ipsa loquitur, etc., alleged complained jury, my cause of action seventh and special from the one indicate that sparks flying, is not sustained. counts or Smithville, complain there were lots stated to I don’t destroy open counts, also together I seen, simply hand—like this. should to each appellee having alleged seventh, eighth, I had never and the got in.” or propositions because appellee operated that the not error paid eye began court to my sixth not when being operated the cinder sufficient which struck issues is sustained. with insufficient evidence. Neither of sustaining issues Nos. know asked to not have arm in of. The groups proof support alike. them much attention. the aid terms “hot cinder” did unsupported proof eighth propositions and the the cinder flew nearly passenger, eyesight was about the court but I don’t know and the' evidence. 2 and near “a instruct the when to so sitting flying got will, therefore, damaging pow- been bothered. appellant’s , or And four spark find proof get been submit showed Appellee interchange- eye, causing court erred of the doc- him at the which into intimate window facts, 1, pulling and tenth him in The 4, there in; questions appellee of' there weak. if it was the near Appellee separate possible, separate thought of said as opinion injured on this hereto my eye one of lection and appel- appel sarily emitted, and began proof plained here- there week both lee *7 jury ence, that fire alleged, the erated ap en- my is- al in. 4, negligent have been sustained. Three of tofore set tur ters with keep ville, place pulling cinders he trains, od of operated by appellant, by specific appellant’s appellant distance negligent any cinder eye of which particularly arresters, or of contains and further operation ing, care the court reasonably ant acter as ring disaster”) applies, as to the curred, and a cinder striking open and omissions trine cial issue on his Smithville, [17,18] appellant, to cause law was a them were proof (which is came he received the a'switch one of said imposed by window at said them in Tex., where the or saying jury, trip are or cinders the train on which escaped. Appellee proved of to as he him in waived res from where that general allegations of which to negligence from one seeks passenger upon of such circumstances as No. manner in forth occurred. This peculiarly until keeping and while negligence. specific support because he spark flying allegations ipsa loquitur, speak noticed selecting avers submit occurrence the doctrine that character defined as tenth that his holds repair; 1, he exercised alleged by which struck approached to avail himself coming Fort operation law above set moving were seen jury. terms, hsec equip averments reached the specific and he sitting; eye. proposition any upon and the cause place, Worth, Tex., within cinders to sufficient repair circumstances attend- appellee also pleaded it "was not rebutting themselves in would occurred and where verba, employes By are of such a “a besides the inference that injuries alleged special about to invoke cinders or At this where to these matters him to constitute him as to engines being op- appellee having negligent forth, shorthand meth- flying, matters there particular this contention that sufficient res sitting entitle in detail window these counts point asserts window and a issues com- he had not mishap ipsa loqui- station that while engines knowledge negligence sparks were offeredno to Smith- preferred partition proof was rid- unneces- the rule furnish- puffing, of fact sitting, engine in' the appel-' arres- infer- infer- short char- doc acts spe not oc se- or at as, from in many separate recover, although and is sustained must well of facts causes of if Thomas, he did tion jury in ters on nor make posed port and distinct count from the one relied structions ant eral quitur doctrine, count, *8 separate in court submitted special issues, that case not doctrine 974, great tions cific case at bar Thomas ed. This eral are in pellant cause from gations stant case the of cific would lies legations athough having recovery pleaded constituting Tex.) acts as the specific, separate aid separate plead such, 63 Tex. Civ. apply ; take principally and omissions of allegations count settled acts allegations proved. M., invoking second, as to conclude jurist, the case of of action some of which were be entitled to recover. one of them specific grounds basis of his the same allege specific grounds negligence entitling guilty admits constituting alleged the facts generally and cannot precedence in another action, is count to a and omissions no subject-matter and distinct proved, the láte Chief Justice the correct rule general charge easily find for any attempt that case was held in distinct based the res proof, negligence evidence was and distinct two main separate generally, because negligence pleaded containing the case all his by proof, count, any negligence. none K. T. he alleging specific acts M., K. distinguishable alleges plaintiff may over invoke separate although count, facts Thomas, can take ipsa loquitur appellee pleaded reversal where thereby pleaded App. 312, may he paragraphs, he is but such facts and distinct three counts particulars: First, cause of action or acts and must be groups special alleged the counts of but relied negligence, one cause of ac & T. written relied the other counts of action in one did not he is entitled to we counts or alleged. submitted to the 132 S. W. the res see him to recover having prove, where the offered in general not count contends in a Appellant re Co. v. Thom several facts waived of this proper, the defend SCHAFF v. SANDERS saw upon. general 132 W. jury upon negigence, averments negligence done to obtain the advantage before precluded rule omissions Key; allege acts in a separate for it is rely up doctrine alleged, ipsa specific groups So we allega Railway proper Co. action rule 62a as count 76 prov mat does alle Tex. case sup gen gen said the evidence spe heard and of spe Ap (257 S.W.) but the are Louis W. op tain the his 124 in in al lo- v. v. to secure mony complained ror. The lack cede verse this grounds the ing cause testimony Tex. able and exhaustive attacking reason Dowdy Bass, this court to determine leged dence stantial trial, casé; v. disturb App.) syth, depositions ard, he is ly Decatur Cotton diligence Patillo, ton-Virginia First, Tex. Civ. cided it 157, rell, S. W. (Tex. We find Affirmed. S. A. Geary appellant’s McCracken, the time discovered evidence is not sustained: S. W. undertake diligence parties charged sufficient, S. W. 12 W. 75 S. E. from our former 104; Gulf, 277, entitled 49 Tex. 219 S. the evidence Civ. because the S. Appellant’s 453; Appellant’s cqunsel alone, many 45 Tex. Ind. v. why S. Ry. On Motion for proper showing Tex. asserted justice against set (Tex. the evidence 28 S. Company record 38 S. W. case, Southern Traction Co. App.) of three 741; capable, 129; our The rule applied taken W. Louisville Co. v. Callahan forth Ry. Ry. used all the 373; Railway to a error severe attack 608; W. Civ. C. S. 1092; Civ. and it is affirmed. Seed Washington might G., discloses Co. instant introduction of the testi Co. v. originally. we do not of does' not state an additional main & F. new eleventh affidavit of 277, Tex. Ry. trial, when it should App.) App. Ann. upon to his th'ird v. Hatchett v. with used; motion H. & S. witnesses 607; Lantry-Sharpe 764; S. Oil Trinity 86 N. position, sufficient merit to at the facts Traction instances 47 Am. St. trial because Hennessey, Co. cumulative with be done Rehearing. therefrom Bouknight, Barks, merely alleges Civ. Cas. case, but Co. this issue 169 diligence Ry. a reversal of Canode have filed a and, second, 6. Company proposition v. E. for a diligence cumulative feel do We & v. v. Belew former trial A. S. App. 627, burden of us diligence 1913E, p. Lauricella, constitute because available B. V. another 97 but, Ry. Co. W. 423; G., disposed Conner, Mitchell v. Ry. (Tex. our use of court, S.W. offered rehearing, Civ. what was Rep. 103; order v. Washing Tex. have al 75 201; 113 Va. v. in view Blanch of new Co., Ry. on file a new Sewell App.) Wor Com. very Tex. 492; For who wit- sub evi 677 Co. Co. de ob be re- er re H. 90 87 - SOUTHWESTERN <&wkey; Appeal 1050(1)— had, objection, Evidence testified to 3. ness same without necessary in title timo cure of defects for matter, of the the introduction harmless, purchaser re- vendor and testimony cannot under such circumstances contract. leased each from the basis of
be the error. against for ear- In owner’s action broker (21] an also state ad We undertake to money by purchaser and nest forfeited claimed why appellant’s fourth and ditional by testimony commission, admission of the broker taken, propositions ninth not well length reasonable of time holding view attack our title, necessary cure defects Sanders, surviv thereon. Newton harmless, error, in view of parent, by ing filing purchaser mutually writing next friend this suit re- owner seeking recovery son, minor contract. of his leased each other from the damages for for his said minor son of broker, &wkey;>88(5) Brokers 4. —Whether capaci earning time and diminished pur- preparing signing with contract ty during minority, estop- and is would be chaser, of owner acted for best interest held ped jury. items of for such to seek for portion himself. Hale v. thereafter against broker In owner’s action money by purchaser, App.) 1004. McKenzie of earnest the broker claimed as its forfeited commission, sub- acts and on New Such broker, prepar- of issue mission ing whether the Sanders, surviving parent, ton the sole purchaser, signing the contract with gift to a his minor son of tantamount any owner helé "best acted for the interests may claim or these interest proper. damages, would thereafter items of and he <&wkey;>88(4) default- 5. Brokers owner precluded asserting —Whether claim from % purchaser performance with contract rule, course, This therefor. would not held for apply brought in cases where the suit por- against broker owner’s surviving by a next friend other than the money purchaser, of earnest forfeited tion parents parent minor. commission, the broker as its claimed Opinion the motion for We are issue owner defaulted whether submission overruled; rehearing should be performance with the contract in the purchaser ordered. proper. helé Motion overruled. &wkey;>!099(4) Appeal and error 6. on —Decision subsequent appeal held law of case on former appeal. appeal, Decision on former that a contract option contract, law of helé subsequent appeal. case on v. BROWNFIELD STATE BANK STRICKEL Appeal 4&wkey;l062(l)— and error 2233.)* Submission (No. et al. finding. harmless, of issue held in view of por- In owner’s action (Court broker Texas. of Civil Amarillo. money by purchaser, tion of earnest submission purchaser Rehearing forfeited Jan. Denie of issue d whether the owner and the 23, 1924.) Jan. option believed the contract to be contract, notwithstanding decision on former — <&wkey;65(l) inclusion, Broker’s 1. Brokers appeal option that the contract was not an con- purchaser, provision protect- .contract harmless, tract, finding helé view ing broker, necessarily evidence of bad option. was not an contract faith. &wkey;>IOOI(l)Findings and error — drafting broker, in That a contract with the supported by in answer issue procured by him, placed purchaser therein a appeal. conclusive provision protecting broker Findings special issues, carry in answer broker, out his contract with of owner supported payment portion when will providing not be of a Appeals. money broker, aside Court pur- set on failure of earnest the chaser to consummate necessarily *9 transaction, does not County; Terry Court, from District evidence bad faith on of broker Mullican, Judge. M.C. toward owner. by W. T. Strickel Brown- Suit <&wkey;>38(l) right 2. Brokers to com- —Broker’s Judgment field Bank another. State mission defense owner’s action for .defendants, plaintiff appeals. Affirmed. money hy purchaser. earnest forfeited' Spencer Randal, & R. A. Sowder In owner’s action broker for ear- Lubbock, for money by purchaser procured by nest broker, forfeited Lubbock, Klett, Joe J. Bean Mc- contract, to consummate Neill, Brownfield, and Geo. W. both of ground Gowan could broker defend on the that it was commission, appellees. thereto entitled as its was not plead thereto as a count- RANDOLPH, appeal J. This er-claim, second pay money bring toor to owner and case. S. W. 258. therefor. suit Digests Key-hfumbered ali <&wkey;>For oases see topic and KEi-NUMBlilt Indexes jurisdiction dismissed of error for want of March *writ