point out the alleged errors relied upon for a reversal of the judgment, and it is not obligatory upon the opposite party or the court to do so. Plaintiff's instruction told the jury that, if plaintiff was a passenger on the car, then the defendant's obligation was to use the highest degree of care practicable among prudent, skillful, and experienced men in that same kind of business, and a failure to use such care would constitute negligence, and, if there was a collision, then the presumption is that it was caused by some negligence of the defendant, and the jury would so find, unless such presumption has been overcome by all the evidence in the case; that is to say, unless they found from all the evidence in the case that there was no negligence on the part of the defendant, and that the injury, if any, was occasioned by inevitable accident or by some cause which such highest degree of care could not have avoided. Defendant's instruction, on the other hand, told the jury that the burden was on plaintiff to prove that the collision was caused by the negligence of the motorman. If we may indulge in a guess as to the inconsistency complained of, it perhaps lies in the above-mentioned difference. But the defendant cannot claim any benefit from this conflict, if plaintiff's instruction is correct and its (defendant's) instruction was erroneous. Turner v. Morris, 142 Mo. App. 60, 125 S. W. 238; Shubart v. Federated Mines, etc., Co., 143 Mo. App. 574, 578, 128 S. W. 2; Sparks v. Harvey, 214 S. W. 249, 251. The plaintiff being a passenger with no imputation of negligence on his part, proof of his status as a passenger, the collision and the injury, made a prima facie case of negligence. Olsen v. Citizens' Ry. Co., 152 Mo. 426, 54 S. W. 470; Rice v. Chicago, etc., R. Co., 153 Mo. App. 35, 131 S. W. 374; Miller v. United Railways Co., 155 Mo. App. 528, 542, 134 S. W. 1045. The allegation of negligence was in general terms, and there was nothing in the evidence to take the case out of the operation of the above rule as to the making of a prima facie case, or requiring that it be submitted on specific acts of negligence, and indeed there is no claim that on this account the case was unfairly submitted. [7] Error is charged in that the instruction on the measure of damages ends up with "not exceeding, however, in all the sum of $15,000," which was the amount sued for in the petition. We say again, as we have heretofore said elsewhere several times, that we will not hold this to be reversible error until the Supreme Court says it is. It has not done so yet, so far as we are advised. Stid v. Missouri Pacific R. Co., 236 Mo. 382, 405, 139 S. W. 172; Lessenden v. Missouri Pacific R. Co., 238 Mo. 247, 265, 142 S. W. 332. [8-10] There is no merit in the contention that error was committed in permitting the motorman to be asked in what distance he could stop a car such as he had on that track as it was on that occasion-i. e., the occasion of the collision. In the first place, it was not a hypothetical question, but merely the cross-examination of the motorman as to a mechanical fact. In the next place, the motorman said he could stop in 30 feet, and then said that he actually did stop in that distance. In the third place, the objection was insufficient, even if it had been a true hypothetical question asked as a part of the direct examination of an expert, since the basis of the objection was that the question did not contain "all of the necessary elements of a hypothetical question," and nothing was suggested as to what those missing elements were. We cannot say the verdict is excessive. It has the sanction of the learned judge who tried the case. As heretofore stated, the claim for damages rests upon a good deal more than the cut on plaintiff's face near his eye. The moment the collision occurred he was caught in the arms of the police officer and carried to the hospital. It is true he was nervous at a time prior to the injury, but there was ample evidence that he had recovered and was a strong, normal boy, able to work, and was a capable, industrious boy up to the time of the accident, but that after that he was in the hospital a long time and his nervous condition returned and he has suffered and languished since that time. We find no error in the record, and the judgment is accordingly affirmed. All concur. One afflicted with 2. Highways 151 (2) [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Invalid.] Appeal from Chambers County Court; Joe F. Willson, Judge. W. T. Walling was convicted of failure to work the road, and he appeals. Reversed and remanded. A. W. Marshall, of Anahuac, for appellant. C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State. HAWKINS, J. Conviction was for failure to work the road, and punishment assessed at a fine of $1. closes that it does not undertake to supersede the general road law in the appointment of road overseers, but in express terms provides: "This law shall be cumulative of all other general laws on the subject of roads and bridges not in conflict herewith, and where not otherwise provided herein such general laws shall apply; but in case of conflict with other general laws the provisions of this chapter shall govern." We do not understand that the provisions above quoted are with reference to the appointment of road overseers and their authority to warn out hands to work upon the public roads, but only confers upon the suexercised by him at his option without interperintendent a like power which may be fering with a like right on the part of the overseer. [2] The defense in this case was that appellant was physically unable to perform labor upon the public road by reason of cancer of the intestines. This defense was supported by the testimony of appellant himself and his physician. For some reason the same was entirely ignored in presenting the case sented in the charge. By reference to article to the jury. No defensive theory was presented in the charge. By reference to article 6919, Vernon's Sayles' Texas Civil Statutes, in specifying who are liable to work on the public road, we find the following: "All male persons between the ages of eighteen and forty-five years shall be liable, and it is hereby made their duty, to work on, repair and clean out the public roads, under provisions and regulations of this title, except ministers of the gospel in the active discharge of their ministerial duties, invalids, members of the Texas National Guard organized under provisions of the title 'Militia,' and the members of all volunteer fire companies in the active discharge of their duties as firemen, who shall be exempt." If appellant was afflicted in the manner indicated by the testimony, and had been advised by his physician not to do any physical labor, and the jury believed the testimony [1] The information alleges that appellant was legally summoned to work the road by a duly authorized agent of the road overseer. Contention is made that a special road law for Chambers county was passed by the Fourth called session of the Thirty-on this point, the ordinary meaning of the Fifth Legislature (Loc. & Sp. Laws 1918, c. 22), in which the office of superintendent of public roads and bridges was created; and that by the provisions of section 10 of said act said superintendent was empowered to call out persons liable to work on the public roads, and that the summons in this case having been made under the direction of the road overseer, and not the superintendent, the same was illegal, and no liability, criminal or otherwise, arose against appellant by reason of his failure to respond to such notice. We think this contention is not tenable. An examination of the act referred to dis word "invalid" is sufficiently broad to em- We believe that spe For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ed with cancer. This ought to have been left as a question of fact to be determined by the jury. Appeal from District Court, Smith County; J. R. Warren, Judge. Suit by J. F. Jones against the Monarch Other charges requested by appellant upon Petroleum Company. Judgment for plaintiff, this issue were not objectionable, and the is-and defendant appeals. Affirmed. sue should have been submitted to the jury, and for failure to do so the judgment of the trial court must be reversed and the cause remanded. HENDERSON v. STATE. (No. 6350.) Miller, Lewis & Thornton, of Dallas, for appellant. Butler, Price & Maynor, of Tyler, for appellee. HODGES, J. On September 8, 1920, the appellee filed this suit against the appellant (Court of Criminal Appeals of Texas. June 15, value of 100 shares of stock in the appellant for the purpose of recovering $1,000 as the 1921.) company, and for special damages in the sum Appeal from District Court, Wichita County; of $825. As the grounds for this recovery H. F. Weldon, Judge. Walter Henderson was convicted of murder, and he appeals. Affirmed. R. H. Hamilton, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Wichita county of the offense of murder, and his punishment fixed at 20 years' confinement in the penitentiary. The record is before us without any statement of facts or bills of exception. The indictment appears to be in proper form, and no error appears in the charge of the court. No reason appearing requiring a reversal of the judgment, an affirmance will be ordered. MONARCH PETROLEUM CO. v. JONES. (No. 2435.) the appellee alleged that he had been deceived by fraudulent representation made to him by the appellant's agents that the Monarch Petroleum Company was incorporated under the laws of the state of Texas, and that they would establish and give him the selling agency of their products at Bullard, Rusk, and Jacksonville, Tex. Relying upon those representations, the plaintiff purchased the stock, entered into a contract of employment, and expended large sums of money in preparing himself for the agency. The averments of fraud and damages were made in sufficient detail to support the judgment rendered. On the 4th day of October the appellant filed an answer, which consisted of a plea of privilege, claiming the right to be sued in Dallas county, the place of its residence, and a general denial. The case was called for trial on November 16, but no one appeared for the defendant. (Court of Civil Appeals of Texas. Texarkana. The plea of privilege was overruled. After June 9, 1921.) 1. Judgment 379 (1)-Excuse must be offered where motion for new trial after judgment is not filed within two days. Where a motion for new trial is not filed within two days after notice of rendition of judgment for the amount sued for, on defendant's failure to appear on the day the case was called for trial, the granting of the motion rests largely within the discretion of the trial court, and the delay imposes on the moving party, not only the duty of showing some excuse for the failure to sooner move for new trial, but of showing that it has a meritorious defense to the plaintiff's suit. 2. Judgment 384-Defendant, on motion for new trial, heid not to show meritorious defense. hearing the evidence, a judgment was entered in favor of the plaintiff for the amount sued for. On December 15 following the appellant filed a motion for a new trial; the principal ground being that its attorneys were unavoidably absent on the day the case was tried. In the contest filed by the appellee it was shown that the case had been set for trial on November 16 by agreement of the attorneys. The record further shows that, after passing upon the plea of privilege, the court heard evidence offered by the plaintiff, and rendered a judgment reciting that fact. [1, 2] On November 17, the day following the trial, appellant's attorneys were notified by the attorneys for the appellee that the judgment had been rendered. No motion, A motion for new trial after rendition of however, was filed to set that judgment aside judgment in favor of plaintiff, on failure of till the 15th day of the following month. No defendant to appear on the day set for trial, excuse is offered in this record for the failure stating that the case was based on alleged to file the motion within the two days refraudulent representations made by an agent, quired by the statute. In such cases the and that "such representations could not be quired by the statute. binding * under the application and con- granting of the motion rests largely within tract," held not to show that defendant had a the discretion of the trial court. good and meritorious defense; statements in & S. W. Ry. Co. v. Kelley, 99 Tex. 87, 87 S. W. reference thereto being mere legal conclusions. 660. That delay imposed upon the appellant, El Paso For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) not only the duty of showing some excuse for the failure to sooner move for the new trial, but of showing that it had a meritorious defense to the plaintiff's suit. In its motion it alleges, in substance, that it is not asking for delay, or endeavoring to defeat the ends of justice, but represents that it has a good and meritorious defense, which is thus stated: "That this cause of action is based upon alleged fraud, or alleged fraudulent representations made by an agent of the defendant herein, which defendant says, if there were fraudulent representations made by a person representing to be their agent, that such representations could not be binding on this defendant under the application and contract signed and executed and entered into by and between this plaintiff and defendant, and that if this court will set aside this default judgment and permit this case to go to trial on its merits, the defendant herein will show to the court when said trial is had that this defendant had a bona fide and meritorious defense, which in the opinion of its attorneys will defeat plaintiff's alleged cause of action." That amounts to no more than a general averment that the defendant had a meritorious defense, without stating the facts, or the substance thereof, upon which that de fense rests. That is not sufficient. Railway Co. v. Kelley, above referred to. The statement that "such representations could not be binding *** under the application and contract" entered into between the parties is a mere legal conclusion, which may or may not be correct. The contract itself is not attached to the motion, nor does it appear elsewhere in the record. We have carefully examined the evidence adduced in support of the judgment, and conclude that it is sufficient. The judgment will therefore be affirmed. with the clerk of the Court of Civil Appeals within 90 days from the service of the writ of error, and article 2073, providing that any statement of facts filed before the time for filing the transcript expires shall be considered as filed within the time allowed by law, where the transcript was filed as required, a statement of facts filed before the expiration of the time for filing the transcript was filed in time, though not presented to opposing counsel or to the court within 100 days after the court's adjournment. Error from District Court, McLennan County; H. M. Richey, Judge. Suit by the Early-Foster Company against the Mid-Tex Mills and others. Judgment for On defendants, and plaintiff brings error. motions to advance and to strike the statement of facts. Both motions overruled. See, also, 208 S. W. 224. Winbourn Pearce, of Temple, and A. L. Curtis, of Belton, for the motions. PER CURIAM. [1] Defendants in error have filed a motion to advance this cause and set the same for submission. The motion treats this as a case entitled to advancement under article 4646, Revised Statutes, relating to appeals in cases wherein a temporary injunction may be granted, refused, or dissolved. The record discloses that a preliminary writ of injunction had been issued, it is further shown that the court at the which was dissolved by the final decree; but tion for a permanent writ of injunction, and same time heard evidence upon the applicapassed upon the merits of the application for a permanent writ, which was denied. This being the situation, we are of the opinion, as we have heretofore held, that the statute invoked has no application. No other grounds deemed sufficient are urged for the advancement of the cause, and the motion is therefore overruled. [2] Defendants in error have also filed a EARLY-FOSTER CO. v. MID-TEX MILLS motion to strike out the statement of facts, et al. (No. 6445.) (Court of Civil Appeals of Texas. Austin. July 2, 1921.) upon the ground that it was not filed in accordance with law or the rules of this court, or within the time prescribed by law. The court adjourned about the 6th day of Feb1. Appeal and error 811-Appeal from dis-ruary, 1921, and the statement of facts was solution of preliminary injunction not advanced when permanent injunction also denied. Rev. St. art. 4646, providing for the advancement of appeals in cases in which a temporary injunction is dissolved, had no application, where at the time of dissolving the temporary injunction the court also heard evidence and passed on the merits of the application for a permanent injunction and denied such injunction. 2. Appeal and error 564 (2)-Statement of facts filed before time for filing transcript had expired held in time. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 1608, requiring the transcript to be filed not filed here until June 6, 1921. It further sented to opposing counsel, or to the court, appears that no statement of facts was prefor more than 100 days after the adjournment of the court; and the trial judge qualiment of the court; and the trial judge qualified the statement of facts to the effect that he was only ordering the same filed below that it might be sent up with the record, for such action as this court might deem proper. In view of the provisions of articles 1608 and 2073, Vernon's Sayles' Civil Statutes, we think the motion should be denied. Article 1608 provides that the plaintiff in error shall file the transcript with the clerk of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Court of Civil Appeals within 90 days from ( crops he was prevented from raising and the the service of the writ of error. The record character of crops which it was alleged were discloses that this was done. Article 2073 contains this proviso: "Provided that any statement of facts filed before the time for filing the transcript in the appellate court expires, shall be considered as having been filed within the time allowed by law for filing same." The statement of facts having been filed here before the time for filing the transcript expired by law, the effect of the latter article is that it has been filed in time. For the reasons indicated, this motion also is overruled. Motions overruled. damaged. 5. Waters and water courses126 (1) Averments of petition for damages to land and crops from overflows sufficient. In an action against a railroad for injuries to plaintiff's land through overflows, where the claim was for permanent injury to the entire land, the averments were sufficient to admit proof of only partial injury to the land as against exceptions that the pleadings did not apprise defendants of the area or quantity permanently injured. Appeal from District Court, McCulloch County; J. O. Woodward, Judge. Suit by H. C. Cummins against John Barton Payne, Director General of Railroads, etc., and another. From judgment for plain PAYNE, Director General of Railroads, et al. tiff, defendants appeal. Judgment affirmed v. CUMMINS. (No. 6380.) (Court of Civil Appeals of Texas. Austin. June 22, 1921. Supplemental Opinion June 29, 1921.) on filing of remittitur by plaintiff. Terry, Cavin & Mills, of Galveston, Newman & McCollum, of Brady, and Lee, Lomax & Wren, of Fort Worth, for appellants. Adkins & Adkins, of Brady, and Baker & Weatherred, of Coleman, for appellee. BRADY, J. Appellee sued appellants, Gulf, Colorado & Santa Fé Railway Company and John Barton Payne, Director General of Railroads, Agent, for damages aris 2. Waters and water courses 125 Dam- ing from overflows upon his land and crops. ages recoverable for overflow. If plaintiff's crops had not matured and were not ready for harvesting at the time of their overflow caused by defendant railroad and the Director General of Railroads, the charge of the court should be so framed that the expense of cultivation should be taken into consideration, as well as that of harvesting, on the measure of damages; also the charge should guard against assessment of any damages for permanent injuries for any period barred by limitation. 3. Waters and water courses 125-Damages for deprivation of use of land through overflow and for permanent injuries not double. In an action against a railroad for damages to plaintiff's land and crops through overflows, damages for deprivation of the use of the land in a year and also for permanent injury to the land for the same period did not overlap nor constitute double damages; such elements being separate and distinct. -- 4. Waters and water courses 126 (1) Plaintiff required to plead character of crops damaged by overflows. In an action against a railroad for damages to plaintiff's land and crops by overflows, refusal of the trial court to sustain special ex ceptions to parts of the petition and plaintiff's trial amendment, especially with relation to the failure of the petition to advise defendants of the character of the crops it was claimed plaintiff was prevented from raising by virtue of the overflows, held erroneous; plaintiff should have been required to plead the character of The cause of the injuries was alleged to be the improper construction and maintenance by defendants of a dam and embankment and culvert or bridge adjacent to the land. The verdict of the jury on special issues was in favor of plaintiff, and awarded damages in the sum of $600. Only the principal questions raised will be discussed, and, for convenience, they will be considered out of their order. Certain assignments present the point that the verdict and judgment are contrary to the evidence and against the overwhelming preponderance of the testimony, in that the undisputed testimony shows that the natural flow of the water was not diverted upon the land of plaintiff, but was caused by the natural drainage of the land. We agree with counsel that there was much testimony for defendants, tending to support their theory. But the evidence was conflicting. We are unable to say that either the undisputed evidence or the physical facts show a compliance by the defendants with their statutory duty. Therefore these assignments are overruled. [1] Appellants also complain of the verdict, urging that the evidence was wholly insufficient to show damages in the sum of $75 to crops injured during the year 1919, and also insufficient to sustain the award of $525 for permanent injury to the land. As to the latter item, while the evidence is conflicting, we For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |