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It is our opinion that the fourteenth as- ances, nor to adopt and introduce every imsignment shows no error.

provement thereof. Beach, Contrib. Neg. The fifteenth assignment is without merit. $ 125; Wood, Mast. & Serv. § 331; Railway The seventeenth and eighteenth errors Co. v. Garrett, 73 Tex. 265, 13 S. W. 62; assigned relate to charges, and are with re- Railway Co. v. Bell, 75 Tex. 50, 12 S. W. 321. gard to matters to which the attention of Ordinary or reasonable diligence may diçthe district judge cannot be said to have tate that a certain improvement should be been called in the motion for new trial, and adopted for the safety of the employé, but they could not prevail here if well founded. this would be a matter for the jury in de.

The court instructed the jury that it was termining the proper care under the circuma duty imposed by law upon railway corpora- stances of the particular case. As the evitions to do everything that could reasonably dence was that the appliances used for the be done for the safety of their employés, and water spout of this tank were the most modto have the structures erected along and by ern, it is hardly probable that in this reits line of railroad for use in connection with gard the jury were misled. Appellees argue the running and operating of its trains along that the clause simply stated a principle in and over its roadbed reasonably safely con- the abstract, which could not have operated structed, and the attachments thereto con- to mislead the jury, in view of other pornected to be of modern improvement and tions of the charges. We find in other porsafe, and that a failure to do so would ren- tions of the charges language that would imder the corporation liable for injury to an ply that the company was held to ordinary employé while in the discharge of his duty, care and diligence only in respect to the tank unless he contributed thereto by his negli- spout with reference to its being a safe apgence. Assignment No. 5 complains of this pliance, but are unable to bring ourselves charge, because the pleadings made no such to the conviction that this was done in such issue, and the degree of care thereby im- manner as to relieve the above charge of posed did not devolve on defendant. As the its misleading tendency. We also find that clerk copied the charge into the transcript, a charge was given at the request of deit is made to appear that the word "and" fendant which stated the proper rule on the was written between the words "reasona- subject, but that this would not remedy the bly" and "safely," thus making the charge error has been held in Railway Co. v. Le to read “reasonably and safely constructed.” Gierse, 51 Tex. 190. The clause complained The original charge having been sent here of required that the attachments should be by an order of the district judge, we find safe, and the other instructions stating or from it that the clerk was in error in his tending to state the rule with less severity, version of the charge, and that the word but without referring to the clause in a "and" does not appear in that connection. manner to show that the court meant to The rule is that the care exacted of a cor- qualify it, would present inconsistent charporation in favor of employés is ordinary ges on a material issue, which were likely care in reference to its structures and ap- to confuse and mislead the jury. See, also, pliances. It seems to us that to require the Edwards v. Dickson, 66 Tex. 615, 2 S. W. structures to be reasonably safely construct- 718; Railway Co. v. Robinson, 73 Tex. 285, ed would be the equivalent of requiring the 11 S. W. 327. The clause objected to does company to exercise ordinary care with re- more than state in the abstract a proposition. spect to them. But the charge went further, It states a principle, applies it to the case, and stated that the attachments connected and makes the liability of defendant turn on with the structures should be “of modern im

it. We are of opinion that the judgment provements and safe." When it is borne in should be reversed, and the cause remanded. mind that it was the spout attached to the water tank alone which is alleged and sought FLY, J., did not sit in this cause. to be proved as the occasion of the injury, a charge which deals with this feature of the case, and imposes a higher degree of duty on the master in respect thereto than

DONALD et al. v. CARPENTER et al. is required, was directly calculated to mislead the jury. This portion of the charge

(Court of Civil Appeals of Texas. Oct. 10, was of controlling importance as applied to

1894.) the facts of the case. It is manifest that the

ATTACHMENT -CATTLE ON RANGE – ACTION POR court, after writing the charge, qualified it

DAMAGES--CLAIM BY PARTNER-AMOUNT OF REby interlining the word "reasonably” be

1. In a suit for damages resulting from the fore the words "safely constructed,” and ap- levy of an attachment on cattle, a witness canpreciated the necessity of the qualification;

not state that the cattle were injured and the but the correction was not extended to the

owners damaged by the cattle being allowed to

run at large and being neglected, and owing to clause stating that the attachments connected the fact that the owners were not allowed to with the structures should be of modern im- attend to them, these being conclusions for the provements and safe. The charge was, with

jury.

2. Where an attachment is levied under out the qualification, erroneous. It is not

Rev. St. art. 2293, authorizing a levy upon certhe master's duty to furnish safe appli- tain kinds of live stock running at large on a

COVERY.

range, to be made without penning and herding Appellees, to establish the liability of apthem, the owner is still in control, for the pur

pellants, rely both upon the legal effect of pose of attending to the stock; and, if he is negligent in this regard, neither the officer nor

the range levy, and upon the actual control plaintiff in attachnient is liable for the result- of the cattle alleged to have been taken by ing damage, though the original writ is void. the sheriff thereunder; and we have conclud. 3. A range levy upon partnership cattle,

ed that, inasmuch as the judgment must be for the debt of one of the partners, does not deprive the partners against whom the writ did reversed, we can better subserve the purposes not run of their possession and control, but, at of another trial by giving our views upon most, subjects them to the right of the purchas

these questions than by discussing the aser at the sale under it to call for an accounting. 4. If an officer, in making a range levy up

signments of error seriatim. on cattle, takes actual charge of them, or pro- First, then, to what extent does a range hibits the owners from looking after them, levy upon cattle, made in compliance with and by his negligence some are lost, he and those under whom he acts are liable.

the statute, render the officer, and through 5. In a suit against attaching creditors to him the plaintiff in attachment, liable for recover damages resulting from a range levy the damage resulting from straying, theft, on cattle in a herd, a charge that defendants

and death for want of attention (these being are liable for cattle lost, strayed, stolen, "or perishing from neglect or otherwise,” is erro

the items of damage charged in the petition) neous, in not confining recovery to damages during the existence of the levy? The statcaused by wrongful acts of defendants or their utes authorizing this kind of levy are as folagents.

lows: "A levy upon horses, mules, jacks, Appeal from district court, Wise county: jennets, horned cattle or hogs running at W. D. Harris, Judge.

large on a range, and which cannot be herded Action by J. C. Carpenter and others

and penned without great inconvenience and against Donald & Cobb to recover damages

expense, may be made by designating by resulting from a range levy on a herd of cat- reasonable estimate the number of animals tle belonging to a partnership of which plain

and describing them by their marks and tiffs were the members, to satisfy an individ

brands, or either; such levy shall be made ual claim against the plaintiff Carpenter.

in the presence of two or more credible perPlaintiffs had judgment, and defendants ap

sons, and notice thereof shall be given in peal. Reversed.

writing to the owner, or his herder or agent, J. Y. Hogsett, for appellants. T. J. Mc- if residing within the county and known to Murray, for appellees.

the officer." Rev. St. art. 2293. "When a

levy is made * * under article 2293 of HEAD, J. Appellees instituted this suit this chapter, it is not necessary that such against appellants to recover damages al- stock or any part thereof should be present leged to have resulted from the levy of an at- at the place of sale, and the purchaser at tachment against Carpenter, individually, up- such sale is authorized to gather and pen on the partnership cattle of Carpenter, Has such stock, and select therefrom the number kell & Mahaffey. The officer attempted to purchased by him." Id. art. 2314. We think make what is commonly known as a "range it clear that the owner would not be authorlevy," but his return fails to show that writ. ized to remove the cattle from the range ten notice was given the owner or his agent, during the existence of such a levy, and the or any reason why this was not done. Ap- officer would have the right, and it would pellees claim, however, that the sheriff took be his duty, to prevent him from doing so, actual charge of the cattle by direction of should he make the attempt. Rice v. Miller, appellants.

70 Tex. 615, 8 S. W. 317. It also seems clear Upon the trial in the court below, appellees to us that the officer ordinarily would not were allowed to introduce, over the objec- have the right, nor be required, to herd and tion of appellants, the following answer from pen the stock, and charge therefor in his bill the deposition of the witness Crumpton, to of costs, for the inconvenience and expense wit: “The cattle was allowed to run at large, of doing this is the very reason given for the not cared for, being neglected; and, owners enactment of the statute. Also, it will be obnot allowed to work and attend to the cattle served that a levy of this kind may be made and brand the increase, the stock is damaged upon a very small number out of a very and owners injured. The sheriff exercised | large herd. Gunter v. Cobb, 82 Tex. 598, 17 control, and threatened to sell. The loss is | S. W. 818. And it could hardly have been ten per cent., by running at large and not intended that under such circumstances the being cared for, and owners not being al- | officer would be expected to take charge of lowed to handle them.” In this we think the entire herd, and charge the losing party there was error. The witness should have with the expense of caring for them. It also been restricted to a statement of the facts, would be unreasonable to suppose the leg. leaving it to the jury to draw the proper con- islature intended that by a levy of this kind clusions therefrom, under the charge, as to the owner should be deprived of the right to what would constitute loss, injury, and dam- herd, pen, feed, and look after the cattle, and age to the cattle, for which appellants would at the same time the officer should not be be liable. Railway Co. v. Wesch, 85 Tex. authorized to do so; in other words, that 598, 22 S. W. 957; Railway Co. v. Wright, 1 during the existence of such a levy the stock Tex. Civ. App. 402, 21 S. W. 80.

should be permitted to run at large, uncon

as

trolled by any one.

We therefore construe lees' case must be made to depend upon the statute to mean this: By a range levy whether or not they were, by the acts of the the entire herd is placed in custodia legis, officer, in fact deprived of such rights. If so as to prevent the owner from selling or the officer, acting under this writ, by the diotherwise disposing of any part thereof in rection of the appellants, took actual charge such manner as will interfere with the right of the cattle, or prohibited appellees from of selection given the purchaser by article looking after them, and during this time some 2314, and it is the duty of the officer to ex- of them, through his negligence, were lost ercise such supervision as may be necessary by straying, being stolen, or dying from want to see that this is not done. Should the of proper attention, all parties thus acting to. owner sustain damage from being deprived gether would, of course, be liable for the re of such right of disposition of his property, sulting damage. he can, in a proper case, recover therefor. The point is also made that, inasmuch as But for the purpose of feeding, branding, the court from which the attachment was and caring for his herd upon the range, the issued was without jurisdiction of the case, owner is still left in control, and for his the writ was void, and consequently an atown neglect neither the officer nor the plain. tempted levy thereof in compliance with the tiff in attachment would be liable. Of course, statutes above quoted would not place the what is here said would have no application property in custodia legis. This position in case the officer should go further than the seems to us to be sound, and presents an adlaw authorizes, as above construed, and take ditional reason why appellees' case is deactual possession of the stock, and exclude pendent upon the acts done by the parties, the owner from the control and manage- in addition to the mere office indorsement ment thereof.

of the attempted levy upon the writ. The We have thus far treated the case mere entry of such a levy upon a void writ though the attachment had been against all would not ordinarily create liability. the owners of the property, while it will be The latter part of the third paragraph of observed that it was in fact only against Car- the court's charge to the jury was as follows: penter, one of the partners. An ordinary “And if you further believe from the evilevy upon the interest of a partner in part- dence that during said time, between Ocnership property is made by leaving a no tober 7, 1887, and February 16, 1898, any of tice with one or more of the partners, or the cattle included in the said levy were lost, with a clerk of the partnership. Rev. St, art. from straying off, being stolen, or perish2295. Under such a levy the officer does not ing from neglect, or otherwise, then it will take actual possession, and the purchaser be your duty to find for the plaintiffs actual only acquires the right to require an ac- damages against the defendants, and assess counting. If, then, an ordinary levy upon the same at a sum equal to the market value the interest of a partner, by giving notice, of the cattle embraced in said levy, and so would not render the officer and attaching lost during said time," etc. The use of the plaintiff liable for a conversion, can it be word "otherwise" in this charge was erronesaid that a range levy made in the same way ous, and especially injurious under the allewould have this effect? In other words, gations and evidence in this case. In their does a range levy upon partnership cattle petition, appellees only claimed damage for for the debt of one of the partners have the the loss of 500 head of cattle, 300 of which effect of depriving the other partners of are alleged to have strayed, 150 to have been their possession and control? We think not, stolen, and 50 to have perished for lack of and that in such case the purchaser, at most, proper care, and consequently they were not will only acquire the right to call for an ac- entitled to recover for losses sustained in counting with the partners against whom the any other way. The evidence was exceedwrit did not run. An ordinary seizure and ingly meager, if, indeed, it furnished any sale of the personal property of one for the data at all by which the jury would have debt of another does not deprive the real been enabled to say what number of the catowner of his title thereto, should he see tle had strayed, how many had been stolen, proper to assert it. 2 Freem. Ex'ns, $ 335. which ones, if any, had died from neglect, Nor did a levy and sale by taking actual or which ones had been lost from other causpossession of partnership property under a es not named in the petition; and had they writ against one of the members, as was the not been instructed to find for plaintiffs all practice previous to the adoption of our losses occurring during the named time, reRevised Statutes, have the effect of depriv- gardless of how caused, their verdict might ing the other partners of their interests. In have been quite different. Not only was this case the appellees do not sue for a con- this charge erroneous in allowing a recovery version of their cattle, but only for special for losses not claimed by appellees, but it was damages alleged to have been sustained by also erroneous in not confining appellees to their being deprived of the possession and the damage caused by the wrongful act of control of them; and we are of the opinion appellants or the sheriff. In Girard v. that an ordinary range levy of a writ against | Moore, 86 Tex. 676, 26 S. W. 945, the law upone of the partners would not have this ef- on this subject is tersely stated as follows: iect, as against the others, and that appel- "The loss for which a recovery may be had

ror.

in an action against a wrongdoer must be against S. S. Sanger. Judgment for plain. the result of the wrong inflicted. In order tiff. Defendant brings error. Affirmed. to recover damages, the party complaining must show, not only that he has suffered the

Stanton & Turney, for plaintiff in error. T. loss, but also that it would not have been

A. Falvey and Waters Davis, for defendant

in error. incurred but for the wrongful act of his adversary.” This principle as peculiar application to the facts of this case. When we

NEILL, J. This suit originated in the jusread the evidence, it is impossible to see up- tice's court, wherein the defendant in error on what ground the jury could have baseu sued plaintiff in error on an alleged contract a finding for $2,000 actual damages, except

for wages due him and certain expenditures upon the idea that the sheriff, and appellants

incurred for plaintiff in error in the performThrough him, were insurers of these cattle ance of the contract. In the justice's court during the continuance of the levy, and judgment was rendered in favor of defendant would be liable for losses resulting even from in error for $122.15, from which plaintiff in natural causes. So manifestly excessive was error appealed to the county court, when the verdict, when measured by the law ap- judgment was rendered against him for $128.plicable to the evidence, that appellees them

08, from which he prosecutes this writ of erselves felt constrained to promptly enter a

in the justice's court an account was remittitur of $500. We are therefore of opin

filed by Noonan against Sanger, in which the ion that, in view of the probable influence

following item occurs, viz.: "To repairs on the giving of this charge had upon the ver- wagon, shoeing mules, feed bill, and general dict, it would of itself necessitate a reversal expenses, $28.81,"—to which the defendant of the judgment, and that the entering of

there, as well as in the county court, exceptthe remittitur, under the circumstances, willed, on the ground that it was not sufficiently not cure the error. Railway Co. v. Wesch, itemized, and did not sufficiently inform him supra.

of the nature of the claim, nor state the dates We find no error in the action of the court

of the repairs, shoeing, feed bill, and general in overruling the exceptions of appellants to

expenses, and the amounts claimed for the appellees' petition. It is not claimed that several items. The exceptions were overHaskett and Mahaffey could recover ex

ruled in the county court, and an exception emplary damages for the malice of appellant duly saved by plaintiff in error to such rulagainst Carpenter; but they relied upon the

ing; whereupon, after the jury was impan. invalidity of the writ, as well as the levy,

eled, the defendant in error pleaded orally, by and they had a right to allege as many de

reading the account, and alleging that on the fects as they could prove, and could not be

day of February, 1893, he entered into restricted to one, even though they could

a contract with Sanger, whereby it was thereby make a perfect case. Besides, no

agreed that defendant in error was to take exemplary damages were allowed, and, even

the team and wagon of Sanger to Cerrillos, if the court erred in this ruling, it would

N. M., and there haul coal for him, etc., not require a reversal.

for which he (defendant in error) was to reIn view of another trial, the evidence will ceive, by the terms of said contract, $55 per not be discussed. The judgment of the court month, and board himself; that plaintiff in below will be reversed, and the cause re

error was to pay his expenses en route to manded for a new trial.

Cerrillos, and that he (defendant in error) was to receive pay from the time he arrived there and began work; that he arrived at his destination and began work on February

27, 1893, and continued work under said conSANGER v. NOONAN.

tract until September 4, 1894, for which he (Court of Civil Appeals of Texas. Oct. 17, was entitled to receive the sum of $344.40, and 1894.)

was also entitled to the further sum of $28.. PLEADING BEFORE JUSTICE-APPEAL--OBJECTIONS

81, as shown by the account, making a sum WAIVED.

total of $373.21, upon which he had been 1. The form in which an account sued up- paid, as shown from his account, $233.28, on in a justice's court is drawn up cannot prej. leaving a balance due him of $139.93, for udice the right of the plaintiff upon the merits which he prayed judgment. Thereupon the of his case, as disclosed by the evidence.

2. Where defendant objects at the trial to plaintiff in error again interposed the same the amendment of the pleadings by plaintiff, he exceptions to the account and oral pleading cannot, upon appeal, take advantage of the based thereon, which exceptions were overfact that plaintiff did not make such amend

ruled, and exceptions reserved to such rulment.

3. An assignment of error that the court ings. When defendant in error offered evi. erred in refusing certain instructions, if the dence to prove the item of $28.81, it was obinstructions do not appear, or if the error does

jected to, upon the ground that it was not not appear, is too general.

sufficiently itemized and specific; whereupon Error from El Paso county court; F. D. he asked leave to withdraw his announceHunter, Judge.

ment of ready for trial, and amend his pleadAction brought by Lawrence Noonan ings by setting out more definitely and spe

cifically the various items and charges com- which plaintiff in error urged could not be posing the item objected to. The plaintiff in done. The very thing he contended should error objected to the court's granting such re- have been done he objected to the court's perquest, on the ground that such leave could mitting when defendant in error asked its not be granted after the trial of the case had leave to permit him to do it. It is his own commenced, which objection was sustained, fault that the account and pleading was not and the defendant in error then excepted. amended to his taste, and he will not now Though this cause originated before a jus- be allowed to take advantage of it. This tice of the peace, we have deemed it proper disposition of the first assignment of error to state thus much from the voluminous rec- necessarily determines the one which comord now before us as necessary to the consid- plains of the court's admitting evidence to eration of plaintiff in error's first assignment prove the item in the account excepted to adof error, which complains of the court's over- versely to plaintiff in error. ruling his special exception to the item of The charge of the court sufficiently present$28.81 in defendant in error's account. ed the issues made by the pleading and the

It has been held by our supreme court that evidence of the several parties, and no inthe form in which an account sued upon in jury is shown by the court's refusal of plainthe justice's court was drawn up could not tiff in error's request "to state to the jury the prejudice the right of the plaintiff, upon the pleadings of defendant and issues made by merits of his case, as disclosed by the evi- such pleadings.” It is evident from the verdence (Doyle v. Glasscock, 24 Tex. 201); and dict of the jury that they found for the de as the assignment of error only goes to the fendant in error upon the express contract ruling of the court upon the exceptions urged pleaded and relied upon by him, and that the against the account, and does not complain charge which submitted the issue of the reaof its rulings, upon the exceptions to the oral sonable value of his services formed no basis pleadings made in connection with the ac- for the verdict. This charge, however, was count (the action being upon an express con- given to meet a phase of the case presented tract), we do not think the assignment shows by the pleadings and evidence of the plaintiff any error prejudicial to the rights of the in error; and, if a verdict had been found on plaintiff in error, or of which he should be such issue, it would have necessarily been heard to complain. Nor do we think that, if in his favor, and the defendant in error alone the assignment had gone to the oral plead- could have complained of it. ings, taken in connection with the item in the The sixth assignment of error is that “the account complained of, such an error would court erred in not presenting and reading to be indicated as would entitle the plaintiff in the jury the first, third, and fourth special inerror, in view of the record made on the trial, structions asked by the defendant, and in to a reversal of the judgment. Pleadings in not presenting the issues called to the attenthe justice's court, except as otherwise spe tion of the court by said instructions." The cially provided, are oral, and the technical charges referred to relate to separate and disrules of pleading do not apply to the man

tinct issues, and it does not appear from ner of forming issues in the justice's court in the assignment what they were, nor wherein ordinary suits. Railway Co. V. Anderson, it was error to refuse them or fail to pre85 Tex. 89, 19 S. W. 1025. As a case on ap- sent the supposed issues. Therefore this aspeal is tried de novo, and the same manner of signment is too general to require considerapleading obtains, the same principles apply,

tion. Burnett v. Friedenhaus, 2 Tex. Civ. and the sufficiency of the pleadings are test-App. 598, 21 S. W. 544. ed by the same rules. Justices of the peace

There is sufficient evidence to support the and litigants in their courts are not, ordina- verdict. No error is assigned which requires rily, skilled in the principles of pleading; a reversal of the judgment, and it is afirmed. and it would be practically impossible for an ordinary justice of the peace and parties before him to conduct the trial of a case under the technical rules of pleading. The law MISSOURI, K. & T. RY. CO. et al. v. does not require impossibilities. It reason

MOSTY. ably appears from the item complained of, (Court of Civil Appeals of Texas. Oct. 17, taken in connection with the oral pleadings

1894.) of the parties, what was claimed by the de- BOND ON APPEAL-TRIAL DE Novo-EFFECT OF fendant in error from Mr. Sanger; but, if it

APPEAL. did not, he ought not now be heard complain,

1. Though, in a bond on appeal from a after having the court refuse the defendant | joint judgment against two persons, one of them

fails to bind himself to pay such judgment as in error's request to withdraw his announce- may be rendered on appeal against the two ment and amend his pleadings by setting out jointly, the bond, as to the other, is good. definitely and specifically the various items

2. Where, on appeal from a judgment of a

justice against two or more persons jointly, a and charges embraced in the part of the ac

trial de novo is to be had, an appeal by one of count complained of. It was within the dis- such judgment debtors annuls the judgment cretion of the court to permit the amendment appealed from. (Parker v. Spencer, 61 Tex. 161; Railway Appeal from Tarrant county court; RobCo. v. Goldberg, 68 Tex. 687, 5 S. W. 824), ert G. Johnson, Judge.

v.275.W.10.19–67

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