SELLMAN v. DANIEL.

April 1,

(Court of Civil Appeals of Texas. 1908. Rehearing Denied May 13, 1908.) 1. ADVERSE POSSESSION INSTRUCTIONS "PEACEABLE AND ADVERSE POSSESSION.' In trespass to try title to land, even though a tract of land claimed by adverse possession was not within Act March 25, 1891 (Laws 1891, p. 76, c. 57), providing that land owned by one person entirely surrounded by tracts owned or fenced by another shall not be considered inclosed by the fence inclosing the circumscribing tract, and possession by the owner of the circumscribing tract of the interior tract is not peaceable and adverse possession within Rev. St. 1895, art. 3343, providing for the recovery of lands held by another peaceably and adversely, within 10 years after the accrual of the cause of action, unless the interior tract be separated by a fence, or one-tenth of it be cultivated, and also providing that possession of land belonging to another by a person owning 5.000 acres or more of land inclosed by a fence in connection therewith shall not be peaceable and adverse possession within Rev. St. 1895, art. 3343, unless the land so belonging to another be separated by a fence from the adjoining lands, or onetenth thereof be cultivated, the land owned by defendant being less than 5,000 acres, and the land claimed by plaintiff not being entirely surrounded by the land owned by defendant, and there being evidence tending to show that defendant had been in possession of a part of the tract long enough to bring it within the 10-year statute of limitations, it was error to refuse to charge on the statute.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 227, 235; vol. 8, p. 7568.]

2. SAME.

In trespass to try title to certain land, if defendant's survey actually covered the land claimed by plaintiff, defendant's survey being older, he would be entitled to recover independently of the 5-year statute of limitations, and, where defendant's deed did not cover the land claimed by plaintiff, he would not be entitled to a charge on the 5-year statute of limitations providing that every suit instituted to recover real estate against a person having peaceable and adverse possession and cultivating the land, etc., and claimed under a deed duly registered, shall be instituted within five years; and hence in either case a charge on the 5-year statute of limitations was properly refused, as it had no application.

Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.

Action by G. N. Daniel against Richard Sellman. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

F. M. Newman, for appellant. Jenkins & McCarty and C. A. Wright, for appellee.

FISHER, C. J. This is an action of trespass to try title by the appellee against Sellman to recover 640 acres of land situated in McCulloch county, patented February 8, 1876. Appellant claimed to own surveys Nos. 990 and 991 to 320 acres each, originally granted by Fisher & Miller Colony certificate No. 278, patented in April, 1859. Verdict and judgment were in appellee's favor for the land in controversy.

The principal question in the case is practically one of boundary. In other words, where

110 S.W.-6

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is the location of surveys 990 and 991? these are the elder surveys, it is conceded that, if they occupy the ground claimed by the The plaintiff, the appellant should recover. plaintiff contends that these surveys are situated south of where his survey is located. The verdict and judgment was in accord with this theory; and, as the case will be reversed, we will not express any opinion as to the facts other than to merely say that the evidence as shown by the record is sufficient to support a verdict for either party.

The appellant requested the court by special instruction set out in his seventh assignment of error to charge on the question of the appellant's right to recover under the 10-year statute of limitation. We think it was error to refuse this charge. There is some evidence in the record tending to show that the appellant had been in possession of at least a part of the land in controversy for a period of time prior to the bringing of this suit to put in operation the 10-year statute of limitation. There is a conflict of evidence upon this subject, but, however, the testimony of the appellant was of sufficient force to entitle the issue to be submitted; and we are of the opinion that there is some evidence tending to show that the inclosure is not controlled by the act of March 25, 1891, which will be found on page 76, chapter 57, of the session laws of that year. The pasture in which the lands are situated is of less than 5,000 acres, and it is not made to appear that the land in question was entirely surrounded by a tract or tracts of land owned, claimed, and fenced by the appellant. As best we can ascertain from the evidence; it appears that the appellant's north line of the pasture fence touches the land claimed by appellee, and while that land, or a part of it at least, is within appellant's inclosure, it does not appear that it was surrounded and circumscribed entirely by tracts owned or controlled by appellant. Prior to this statute it was held that lands inclosed within a pasture fence, coupled with use, was sufficient to indicate adverse possession, and the two sections of the statute in question were evidently designed to limit and to some extent control the rule established by these decisions. If in this case this statute would not govern, then the former decisions could be looked to in order to determine whether the possession of a small tract within a large inclosure was adverse.

Appellant contends in the eighth assignment that he was entitled to have submitted a charge upon the subject of the 5-year statute of limitations. This statute, in our opinion, would have no application. The deed under which the appellant claims gives no better description of the land to which he is entitled than is contained in the patent. It does not purport to describe any of the land embraced in the field notes of appellee's survey; and if the description of the land contained in his deed is the same as that embraced in surveys 990 and 991, and they do not include the land

2. SAME DELAY IN FURNISHING CARS-WAIVER OF DAMAGES.

After plaintiff's cattle had been delayed at the point of shipment for several days because of delay in furnishing cars, he was required to sign a written contract which was presented to him for the first time late at night after the stock was loaded and the train ready to depart. He signed it without an opportunity to read it, and no consideration was received for doing 80. The contract contained a provision discharging the carrier from damages resulting from the delay in furnishing the cars, of which provision plaintiff had no knowledge. Held, that plaintiff by signing the contract did not waive his right to damages for the delay. 3. DAMAGES-INTEREST.

In an action for breach of contract, where plaintiff prays for damages in a certain amount and general relief, though interest eo nomine as damages is not mentioned, interest may be allowed from the date of the accrual of the action as part of the damages.

tiff sustained damage to the extent of $800; that under defendant's rules and usages plaintiff was forced to sign a written contract before the cattle were permitted to leave the station, and this was known to plaintiff; that the written contract or contracts were presented to him for the first time late at night after the cattle were loaded and the train ready to pull out, and plaintiff did not read the contract, and had no reasonable opportunity to do so, and no consideration was received by plaintiff for the execution of the same.

We conclude that there was testimony which warranted the said findings, except the finding that defendant authorized this contract. It is contended by appellee that there was some evidence in support of this finding; but it is not necessary for us to so

Action by H. J. Timon against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant ap. peals. Reformed and affirmed.

See 99 S. W. 418.

Proctors, Vandenberge & Crain, for appellant. F. G. Chambliss and Beasley & Beasley, for appellee.

JAMES, C. J. The case was here on a previous appeal. 99 S. W. 418. The recent trial was without a jury. The petition alleged that an oral agreement was entered into with defendant's station agent at Skidmore to fur nish a certain number of cars at said station on a certain date for the shipment of plaintiff's cattle to East St. Louis, Ill., which agreement was violated, and by reason thereof his cattle were damaged in loss of weight, etc., by being held for several days under herd in a small pasture awaiting the cars, and also by decline in the market value of the cattle resulting from the delay. The judgment allowed was for $960.

The judge's conclusions of fact are sub. stantially as follows: Defendant's station agent had ostensible authority to make the contract alleged; also that he was authorized to do so; that plaintiff did not know any want of authority in the agent to make the contract, but believed he did have, and had no reason to believe otherwise; that the contract was entered into, and the cars were not furnished at the time agreed on, but were delayed from day to day, and plaintiff, relying on the agreement and promises of the agent from day to day, held the cattle until the cars arrived, taking prudent care of them in the meantime; that the 259 head lost flesh by being so held to the extent of 100 lbs. per head, and the market of such cattle in East St. Louis was according to weight, and they were worth on the date they should have reached there, but for said delay, 10 cents more per 100 lbs. than when they did arrive, whereby and by the loss of flesh plain

plained, the evidence was sufficient to warrant the finding that the agent had ostensible authority to make the contract, and this is sufficient. Our conclusion that the findings were supported by evidence necessitates overruling the first and third propositions and the subsidiary proposition under the first assignment of error, and also the fourth and sixth assignments.

The second proposition under the first assignment is overruled, because we think the finding that the circumstances which were pleaded under which the written contract was signed rendered it not binding on plaintiff.

The second assignment is the one which questions the finding of fact that the station agent was authorized to make the contract alleged. We have already referred to this as an immaterial finding, if he had ostensible authority, and plaintiff knew nothing to the contrary. It is contended as a question of law that the local station agent of a railroad company possesses no ostensible authority to make an oral contract for the transportation of cattle beyond the end of its line. This is prima facie so. Railway v. Jackson & Edwards (Tex. Sup.) 89 S. W. 968. But appellant goes further and asserts that the same is the case in reference to a contract to furnish cars for the shipment of cattle when they are destined beyond its line. We do not regard the case just cited as declaring any such rule, but we understand it as declaring that such power ostensibly exists in the station agent. It is to be remembered that the action here is not on account of anything that happened to the cattle while being transported, but for something that happened to them at Skidmore before the transportation commenced. The contract sued on was the agreement to furnish cars, and the damages alleged to have been sustained occurred at Skidmore pending the arrival of the cars, a matter with which the written contracts, and also the obligations of the defendant with reference to the transportation of the cattle

after loading, had nothing to do, except in so far as the written contract undertook to discharge defendant from damages resulting from the failure to furnish the cars. The matter of furnishing cars was a matter within the implied authority of the agent of the particular station, and plaintiff having no notice to the contrary, but relying on the appearance of authority, the finding as to the binding force of the contract may be sustained. We, therefore, overrule the third assignment and all propositions based on the foregoing contention.

By the fifth assignment it is insisted that because plaintiff voluntarily and willingly executed the written contracts, which contained a provision that he waived all damage, if any, that had been caused him by any delay in furnishing the cars, he is not now entitled to assert this cause of action. Plaintiff testified: "After we got them loaded I went to the depot, and the cattle were standing on the track ready to go. We signed that contract, and they went on. I did not read the contract. I did not have an opportunity to read it. I did not know that there was a provision in that contract to the effect that I waived any damages incurred by reason of their delay in furnishing the cars. I don't remember reading any such clause in the contract, or ever having such clause called to my attention. The matter of waiving my right to damages because of failure to furnish cars was not discussed by me and the railroad agent at all. There was no consideration paid me by the railroad company for this waiving of my right. There was nothing paid to me for the execution of either one of these contracts. They did not promise to pay me anything, and they have never paid me anything." We consider the finding of the court sustained by the evidence, especially with reference to the waiver of plaintiff's right to damages for the delay caused by the failure to furnish

cars.

We overrule the seventh assignment, as the pleading was sufficient to support a case based on ostensible authority of the agent to contract for cars, and we overrule the only proposition under the eighth and ninth assignments for the same reason. We overrule the tenth also. The only feature wherein the written contracts affected the oral contract for cars was the clause which waived damages arising from such failure. The pleading and proof were sufficient to warrant the finding that such agreement was not conclusive upon plaintiff. What has been said disposes also of the eleventh and twelfth assignments.

The thirteenth assignment contends that there is error in the judgment in allowing as damages interest at 6 per cent. per annum from April 25, 1904, upon $800, the amount of damages awarded, for the reasons (1) that interest as damages from the date of the accrual of the cause of action was not prayed

for; and (2) that the cause of action did not accrue prior to June 12 to June 23, 1904.

Plaintiff prayed for damages in the sum of $2,977 and general relief, although interest eo nomine as damages was not mentioned. It was admissible, with pleadings in this condition, for the court to allow interest as a part of the damages. Watkins v. Junker, 90 Tex. 586, 40 S. W. 11; Railway v. Greathouse, 82 Tex. 104, 17 S. W. 834. Appellee concedes that the cause of action did not accrue until about June 25th, and asks that the judgment be reformed by computing interest from that date, which is ordered to be done.

We overrule the remaining assignments, which are to the effect that the damages awarded were excessive. Almost every question presented by the briefs was discussed and disposed of in the opinion on the former appeal, to which we refer.

Reformed and affirmed.

WADE et al. v. GALVESTON, H. & S. A. RY. CO.*

(Court of Civil Appeals of Texas. Feb. 19, 1908. On Rehearing, April 1, 1908. On Second Rehearing, April 29, 1908.)

1. MASTER AND SERVANT-DEATH-EVIDENCE -ADMISSIBILITY-GENERAL ISSUE.

In an action for the death of a servant, in which the defense was contributory negligence, evidence of a physician that defendant was suffering from a stricture is admissible under the general issue, since it would tend to show that deceased came to his death from a cause other than the injury alleged.

2. TRIAL-INSTRUCTIONS - FAILURE TO REQUEST-EFFECT.

Where, in an action for the death of a servant, a plea alleges the contributory negligence of plaintiff, and that he was suffering from a disease which rendered him susceptible to the injury which caused his death, and by exception the latter part of the plea was stricken out, but the whole plea went to the jury, the fact that testimony of a physician was introduced showing such disease, which testimony was admissible under the general issue, cannot be taken advantage of, on the ground that the evidence was calculated to mislead the jury, by allowing them to consider the stricken portion of the plea, where no instruction was asked, explaining to the jury the effect of striking out the portion of the plea.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 627-641.]

3. MASTER AND SERVANT-DEATH OF SERVANT INSTRUCTIONS · CONTRIBUTORY NEGLI

-

GENCE.

In an action for the death of a servant, a charge on contributory negligence, which told the jury that if the injuries resulting in death resulted from the deceased's own negligence and the manner in which he acted, then they should find for plaintiff, is not subject to the objection that it caused the jury to consider any form of contributory negligence other than the manner in which he acted, where the plea of contributory negligence sets out the specific manner in which the servant conducted himself, which was alleged to be contributory negligence. 4. TRIAL-INSTRUCTIONS-IGNORING ISSUES.

In an action for the death of a servant while moving crates of glass from a freight car, a requested charge, basing the negligence of də *Writ of error denied by Supreme Court June 10, 1908.

fendant on the absence of enough men to handle the crates, and the fact that the men who did move the crates were of insufficient strength to safely move them, is properly refused, where the charge ignores the issue of contributory negligence and assumed risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 613-623.]

5. SAME-REQUESTS-SUFFICIENCY.

An incorrect requested charge, on an issue not submitted in the court's charge, amounts to a sufficient request for the submission of the issue, and a failure of the court to submit it, under such circumstances, is error requiring a reversal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 675.]

6. SAME-RECEPTION OF EVIDENCE-REBUTTAL -TESTIMONY.

While it is a rule that, where plaintiff has made his prima facie case by witnesses, and these witnesses are contradicted or impeached, plaintiff has the right, for the purpose of supporting his prima facie case, to bring other witnesses in rebuttal, still such testimony must be confined to the facts controverted, and cannot be used to go over the ground of his entire case again.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 149-153.] 7. EVIDENCE-HANDWRITING CARBON COPIES.

COMPARISON

A carbon copy of a writing, made by the pressure of a pencil on the original, and the original, are each the writings of the party, and the carbon copy is not a copy of the original writing; and hence the carbon copy is admissible for the purpose of comparison of handwriting. 8. SAME.

Handwriting cannot be proven by comparison with other papers, claimed to have been signed by the witness, which are not relevant to any issue in the case, where objection is seasonably made.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 681.]

9. SAME-COMPARISON BY JURY.

Where a proper standard of comparison of handwriting is before the jury, comparison may be made by the jury itself, or with the assistance of expert testimony.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 681.]

In an action for the death of a servant while moving crates of glass from a freight car, evidence considered, and held insufficient to require the submission to the jury of the issue whether defendant was negligent in furnishing an insufficient force of men to do the work, whereby plaintiff was injured, but to raise the issue of the negligence of defendant's foreman in giving an untimely order to move the crate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1051-1067.] 12. WRIT OF ERROR-OBJECTIONS IN LOWER COURT-SUFFICIENCY.

Where objection is made to the writing of the name of a witness twice on a piece of paper,

in the presence of the jury, for the purpose of comparing his handwriting, by stating "that the introduction of the instrument was incompetent, irrelevant, and immaterial, and handwriting cannot be proved by comparison," the objection is not sufficient to raise the objection that handwriting cannot be proved by comparison with other papers, claimed to have been signed by the witness, which were not relevant to any issue in the cause.

13. EXCEPTIONS, BILL OF-CONCLUSIVENESS.

The verity of an approved bill of exceptions is not subject to attack or modification by affidavit, where the bill is regular on its face. 14. WRIT OF ERROR REVIEW QUESTIONS CONSIDERED-MOTIONS TO STRIKE.

Where a judge refuses to hear a motion to strike out portions of a bill of exceptions, he may be compelled to hear the motion by mandamus, but the court on appeal cannot review the nonaction of the trial court.

On Second Rehearing.

15. TRIAL-INSTRUCTIONS-REFUSAL OF REQUESTS.

In an action for the death of a servant while moving crates of glass from a freight car, the failure to charge on the issue of defendant's negligence in having an insufficient force of men at one end of the crate, whereby plaintiff's injuries were caused, is immaterial, where the court charged that if defendant's foreman gave an untimely order to move the crates, which caused the plaintiff's injury, the defendant would be liable; since by the latter charge the jury would be authorized to find defendant negligent if there was an insufficient force at the end of the crate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]

16. SAME-NECESSITY OF REQUESTS.

Where a court has made a general presentation of an issue in a cause, if the party desires a fuller charge on that issue, he must request a correct charge; and if he presents one which is incorrect, the court is not bound to give it, or to charge further on that issue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 628-641.]

17. WRIT OF ERROR-REVIEW-HARMLESS ERROR-BILL OF EXCEPTIONS.

Where it is urged that a bill of exceptions was erroneously qualified as to the admission of evidence in the cause, the error, if any, was harmless, where, by disregarding the qualification, the bill of exceptions still shows the evidence to be inadmissible.

Error from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Anna Wade and others against the Galveston, Houston & San Antonio Railway Company for the death of plaintiff's son. From a judgment for defendant, plaintiffs bring error. Affirmed.

James Routledge, J. R. Norton, and C. L. McGill, for plaintiffs in error. Newton & Ward, W. B. Teagarden, and Baker, Botts, Parker & Garwood, for defendant in error.

JAMES, C. J. Anna Wade, joined by her husband, Frank Wade, instituted this action against the railway company for damages, on account of the death of her son, Bishop Green, an employé of the company, alleging, in substance, that Clarence Williams was defendant in error's assistant foreman and vice principal in charge of the work being done, which was the moving of heavy crates