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124, 118 S. W. 596; Frazier v. Coleman, 111 The facts in the case of Ry. Co. v. Woldert, S. W. 663; Wainwright v. Cotter, 137 S. 162 S. W. 1174, are analogous to the facts in W. 419.

the instant case, except as to the amounts in(4) Appellant's suit for injunction is based volved, and we refer to that case for a full upon the doctrine that the law abhors a discussion of the doctrine of injunction to multiplicity of suits. This, like all other prevent a multiplicity of suits. declarations as to legal policies, must not There is no force in appellant's allegation be pushed too far. It is the policy of the that the justice of the peace is not a lawyer law to permit, and in a proper case equity and it "could not hope for any consideration will require, all matters in controversy be or determination of its legal rights in the tween the same parties to be settled in one trial of said suits in said justice court than suit. The law also abhors multifariousness such as the prejudices and whims of said and confusion of issues, and equity will not jury might dictate." True, justices of the require all causes of action between the same peace are not presumed to be lawyers, but parties to be tried in one suit, where the they are usually chosen by their neighbors causes of action and of defense rest upon on account of their upright character and different questions of law and different ques- innate sense of right. There does not appear tions of fact.

to be any doubtful question of law involved Appellant, in support of its contention that in said suits, but only questions of fact. appellee should be compelled to join all his Juries in all of our courts are made by law causes of action against it in one suit, cites the exclusive judges of the credibility of Clegg v. Varnell, 18 Tex. 294. That was not the witnesses and of the facts proven. The a case in which it was sought to compel the law provides for a method of obtaining implaintiff in several suits to join them all in partial jurors in justices' courts, and there one suit, but a case in which there was a plea is no reason to suppose that juries in such of misjoinder. It does not follow that be- courts, any more than in any other court, cause a party might legally combine several will be controlled by their “prejudices and causes of action in one suit, he may be wbims.” Even if the presumption could be compelled to do so. In the Clegg v. Varnell indulged that courts will render erroneous Case, the court said:

judgments, this would not be a ground for "A claimant attempting to restrain the sale injunction to prevent such trials. "Disof his property under execution against anoth- trict courts will not grant injunctions to corer person is pot compelled to institute suit rect errors of inferior courts, even where no against each plaintiff in execution when there is but one common matter in dispute, and that appeal is allowed" (Ry. Co. v. Dowe, 70 Tex. is whether the property belongs to the claim- 4, 6 S. W. 793), and certainly they should ant or to the defendant in the executions.” 18 not grant injunction to prevent anticipated Tex. 305.

error where there are no grounds for such In the suits instituted by appellee there anticipation. is not "one common matter in dispute." In Appellant alleges as a ground for injuncthe Clegg-Varnell Case had there been two tion that it cannot avail itself of the right or more suits, the matter to be settled in each to have all of the cases pending in the juswould have been the same, viz., the owner- tice's court consolidated, and that neither of ship of the property levied upon. In the such cases involves an amount sufficient to instant case the matter to be settled in any allow an appeal to the county court, and one of the suits brought by appellee, viz., consequently he could not appeal either of whether any of the turkeys in a particular said cases to the Court of Civil Appeals. shipment were dead when delivered, would This was one of the grounds upon which inhave been altogether a different question junction was granted in Ry. Co. v. Dowe, from whether any of the turkeys in another 70 Tex. 11, 7 S. W. 371. In the Dowe Case shipment from another party at another the suits had not been brought. The court time were dead when delivered. The judg. said: ment in one case, though between the same “The rule is that, if in the tribunal which parties, would not only not have been res has jurisdiction of the demands, there can be adjudicata as to another case, but would party to resort to this remedy, and equity

a consolidation, then it is the duty of the not have been admissible as evidence in such will not interfere. In such a case there is a other case.

remedy at law.

In order, it would In Ry. Co. v. Dowe, 70 Tex. 10, 7 s. w. seem, to prevent' even a partial consolidation,

*. the defendant had determined to bring 368, the issues in each of the threatened a separate suit to each successive term of the

were the same, viz., the liability of court." the railway company for checks issued by In the instant case all of the suits have a contractor, and the statute of limitations. been filed, and though they cannot all be

Steger v. McMaster, 51 Tex. Civ. App. 527, consolidated into one suit, as such suit would 113 S. W. 337, was a suit to enjoin five then be for an amount in excess of $200, suits in two justice of the peace courts, each they could all be consolidated into two suits, involving the same issues of law and of each of which would be in excess of $100, fact, viz., the construction of a complicated and each of which could be appealed to the contract, and whether the defendant or the county court and to the Court of Civil Ap

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plicity of suits, and appellant would secure On the 12th day of May, 1913, Harvey B. its right of appeal to a court of law. It Ross brought this suit against the Southern does not appear that appellant has made any Surety Company, and sought to recover a effort to secure a consolidation of any of judgment against that company, basing his said cases.

cause of action upon the fact that on the For the reasons stated, the judgment of 28th day of November, 1912, he had recoverthe trial court is affirmed,

ed a judgment against the Oklahoma Fire Insurance Company for $9,177, for a breach of a contract of agency, from which he al

leged no appeal had been taken. ROSS v. SOUTHERN SURETY CO. †

The answer of the surety company, among (No. 5321.)

other things, contained a general demurrer (Court of Civil · Appeals of Texas. Austin. and two special exceptions. The trial court June 24, 1914. Rehearing Denied

sustained the general demurrer and special Oct. 14, 1914.)

exceptions to the plaintiff's petition, and, 1. INSURANCE ($ 21*)—FOREIGN COMPANIES— the latter ,declining to amend, the suit was BOND,

A bond given by a foreign insurance com- dismissed, and the plaintiff has appealed, pany in strict compliance with Act March 20, and assigns error upon the rulings referred 1909 (Acts 31st Leg. c. 102) $ 1, which requires to. that such companies give bond to pay all their

[1] In their brief counsel for appellant lawful obligations and is limited by section 3 to obligations arising out of contracts of insur- seem to assume that the bond sued on does ance, was a valid statutory bond, though it did not comply with the statute, and is insufi. not contain such limitation in express terms. cient as a statutory bond, but they contend

[Ed. Note.-For other cases, see Insurance, that it may be enforced as a common-law Cent. Dig. § 23; Dec. Dig. $ 21.*] 2. INSURANCE ($ 21*)-FOREIGN COMPANIES what respect it fails to comply with the act

obligation. They have not pointed out in BONDS-RIGHT OF ACTION.

A judgment against a foreign insurance of March 20, 1909 (Laws 1909, c. 102), requircompany on a contract of agency, and not on a ing nonresident insurance companies to give contract of insurance, gives no right of action bond in order to obtain authority to transact on a bond given pursuant to Act March 20, 1909 (Acts 31st Leg. c. 102) $$ 1, 3, requiring business in this state. That statute was conthat foreign fire insurance companies give bonds strued by the Supreme Court in Ætna Into the state conditioned for the payment of surance Co. v. Hawkins, 103 Tex. 195, 125 all lawful obligations arising out of contracts S. W. 313, in which it was, in effect, held of insurance.

[Ed. Note: --For other cases, see Insurance, that such a bond as the one now under conCent. Dig. 8 23; Dec. Dig. $ 21.*]

sideration would be a substantial compli

ance with the statute, and that the provision Appeal from District Court, McLennan

of the first section requiring the bond to be County; Tom L. McCullough, Judge. Action by Harvey B. Ross against the conditioned for the payment of all lawful

obligations to citizens of this state is limited, Southern Surety Company. From judgment for defendant, plaintiff appeals. Afirmed by section 3, to obligations to citizens of

this state arising out of policies or contracts E. J. Clark, W. R. Saunders, Geo. W. Cole, of insurance. In other words, the court held and Scott & Ross, all of Waco, for appellant. that section 3 was a limitation upon section Sleeper, Boynton & Kendall, of Waco, and 1, and that, when a bond was executed as Burwell, Crockett & Johnson, of Oklahoma provided by section 1, the legal effect of such City, Okl., for appellee.

bond was limited by section 3 to obligations

arising out of policies or contracts of inKEY, C. J. On the 16th day of May, 1910, surance issued by fire insurance companies. the Oklahoma Fire Insurance Company, as

The bond in question is in strict compliance principal, executed a bond with the Southern with section 1; and therefore we hold that Surety Company as surety, in the sum of it is a valid, statutory bond. $10,000, payable to, and approved by, the

[2] We might stop here as appellant's commissioner of insurance and banking of brief seems to concede, inferentially at least, the state of Texas. The bond recited upon that, if the bond sued on is a statutory obits face that it was executed pursuant to the ligation, he is not entitled to recover; but requirement of the laws of Texas, and con

we deem it proper to say that he is not entained the following stipulation:

titled to maintain an action upon this stat. “However, the condition of the above and utory bond, because he is not one of that foregoing is such that if the above designated class of persons for whose benefit and proand bounden principal shall well and truly pay tection the statute requiring the bond was all its lawful obligations to any and all citizens of the state of Texas, and also any and enacted. In other words, his petition shows all sums of money for reinsurance for which that his judgment against the Oklahoma said principal may be or become liable under Fire Insurance Company was based upon a the foregoing terms and provisions of this in-contract of agency, and not upon a policy strument, said obligation shall thereupon become and be null and void; otherwise to be and or contract of insurance; and it is the lat. remain in full force and effect."

ter class of contracts, and not any other, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

† Application for writ of error pending in Supreme Court.

that comes within the purview and protec- F. H. Prendergast, of Marshall, for aption of the statute, as was held in Ætna pellant. Lane & Lane and M. B. Parchman, Insurance Co. y. Hawkins, supra.

all of Marshall, for appellees. Hence we hold that the trial court ruled correctly when it sustained the general de- HODGES, J. In March, 1913, Dan Moody, murrer to the plaintiff's petition, and there- the husband of the appellee Phebe Moody, fore the judgment appealed from is affirmed. was struck and killed by one of the appelAffirmed.

lant's trains as he was crossing the track in the village of Scottsville in Harrison county.

This suit was brought by the widow and TEXAS & P. RY. CO. V. MOODY et al.

children of the deceased to recover the statu(No. 1274.)

tory damages. (Court of Civil Appeals of Texas. Texarkana. July 4, 1914. Rehearing Denied

[1] The evidence shows that the appellant's Oct. 8, 1914.)

line of railway runs east and west through 1. RAILROADS ($ 350*)—CROSSING ACCIDENTS Scottsville, and is there crossed at right -QUESTIONS FOR JURY.

angles by a public road. The stores of the In an action for the death of a person village are situated on the south side of the struck by the train at a crossing, evidence held to make questions for the jury as to whether railway track. On the date of the injury the statutory signals were given and as to con- two passenger trains going in opposite directributory negligence.

tions were to pass at the depot at Scottsville. [Ed. Note.-For other cases, see Railroads, The train from the east had arrived and was Cent. Dig. $8 1152–1192; Dec. Dig. $ 350.*] 2. APPEAL AND ERROR ($ 501*)-RESERVATION south of the main line. The train from the

standing on a side track about eight feet OF GROUNDS OF REVIEW-EXCEPTIONS.

The refusal to give requested charges will west was due to pass about that time. Neinot be reviewed, where the record contains no ther of these trains was scheduled to stop at bill of exceptions to such refusal.

Scottsville, but passed at that point on this [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. && 2300-2305; Dec. Dig. g occasion because of one of them being late. 501.*)

Isaiah Jackson, a witness for the plaintiffs, 3. RAILROADS ($ 350*)-CROSSING ACCIDENTS who was with Moody at the time the accident

--CONTRIBUTORY NEGLIGENCE-FAILURE TO occurred, testifies substantially as follows: LOOK AND LISTEN.

The failure of a person to look and listen The rear end of the train standing on the for an approaching train at a highway crossing side track was just clear of the crossing. is not negligence per se.

Witness left Hudson's store on the south [Ed. Note. For other cases, see Railroads, side of the track in company with Moody to Cent. Dig. 88 1152–1192; Dec. Dig. $ 350.*]

cross over to the north side at the public 4. APPEAL AND Error (8_1060*)-HARMLESS crossing. They were starting home, and were

ERROR-ARGUMENT OF COUNSEL-IMPROPER
REMARKS.

expecting to join other parties in a wagon In an action for death in a crossing acci- waiting for them on the north side. As they dent, though the petition alleged negligence in were crossing the railroad the train going having an engine and train of cars standing up-east struck and killed Moody. Witness did on a side track near the crossing and in permitting steam to escape with a loud noise from not hear the train coming, and did not know the engine, the court submitted only the issue that it was coming. The first time he saw of whether the statutory signals were given. the train was after he got on the track, and Defendant's attorney, referring to the testimony of witnesses that they did not hear the bell or it was then right at him, so close that it whistle, stated that, according to their testi- brushed him as he jumped off. Witness was mony, the engine was emitting steam, and the in front, and Moody about one step behind. the bell or whistle, and that no witness had said He did not hear any bell ring or any whistle that such signals were not given. In reply blow. The train was running pretty fast. plaintiff's attorney referred to the engineer's After Moody was hit the train ran down testimony that the standing engine and train some distance, stopped, and backed to the completely cut off his view from the south, and said that, taking into consideration the fact place where the injury occurred. On cross-exthat he was running at a high rate of speed amination he stated that standing on the track and had not blown any whistle and was not he could see a train coming about 50 or 100 ringing the bell and could not see any one ap-yards distant. He saw the train standing proaching the crossing from the south, it seemed to him almost like criminal negligence. Held, on the side track, and was expecting the eastthat, even though the language was unwarrant, bound train to come right away, but did not ed, it was not such an impropriety as required a reversal; it not being likely that it caused the know that Moody was expecting it, had not rendition of an unmerited verdict.

talked with Moody about it, and the latter [Ed. Note. For other cases, see Appeal and had said nothing on the subject. Those Error, Cent. Dig. & 4135; Dec. Dig. $ 1060,*]

trains usually met at Waskom, and did not Appeal from District Court, Harrison Coun- ordinarily stop at Scottsville. Witness was ty; H. T. Lyttleton, Judge.

about one step in advance of Moody at the Action by Phebe Moody and others against time the latter was struck. Other witnesses the Texas & Pacific Railway Company. testified to substantially the same facts. From a judgment for plaintiffs, defendant The trainmen testified that the whistle was appeals. Affirmed.

blown for the crossing, and the bell was rung.

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Several witnesses, who were sufficiently near hear them, and that was because of the the railway to hear these signals had they noise made by the escaping steam. M. B. been given, testified that they did not hear Parchman, an attorney for the appellees, in them. There was some testimony tending to replying to this argument used the followshow that the through trains in passing ing language: Scottsville sometimes omitted the giving “Now, gentlemen, take the testimony of Bell, of the required signals. The jury returned a who was on the engine, and J. D. Scott, who verdict in favor of the appellees for $1,500. track and in full view of same. Bell testified

was in his garden about 75 yards north of the [2] The first four assignments of error that the passenger train was standing on the complain of the refusal of the court to give side track where it filled in the gap between designated special charges requested by the the warehouse and the station house, and the

tail end, extending below the station to the appellant. The record contains no bill of road crossing, completely cut off his view from exceptions to the action of the court in re- the south, and he could not see any one apfusing those instructions, and the assign- proaching the crossing from the south on acments will not be considered. The grounds ed the crossing, and that J. D. Scott swore

count of the train standing there until be reachupon which we decline to consider the in- that the train was running at a high rate of strument relied on as a bill of exceptions speed, now taking into consideration the fact are sufficiently stated in St. L. S. W. Ry. Co. that Bell, the engineer, was running at a high

rate of speed and had not blown any whistle of Texas v. Wadsack, 166 S. W. 42. See, al- and was not ringing his bell, and could not so, Ry. Co. v. Galloway, 165 S. W. 546. see any one approaching the crossing from the [3] We do not think it could be said as a is with you-but it seems to me like that it was

south, it seems to me like-I don't know how it matter of law that Moody was guilty of con- almost criminal negligence." tributory negligence. It has been frequently

Counsel for appellant thereupon arose and held in this state that the failure to look and objected to the remarks of Mr. Parchman for listen for an approaching train is not negli- the reason that the court had not submitted gence per se. The testimony shows that the that issue as a ground of recovery, and asked train standing on the siding was emitting for a bill of exceptions to the remarks of Mr. steam and making considerable noise. This Parchman that it was criminal negligence noise, coupled with the fact that the ap- for the train to be standing upon the siding. proaching train could not be seen by Moody It appears that these remarks were not made until after passing the rear end of the coach by permission of the court, but before the standing near the public road, are facts to be court's attention was called to the matter. considered in determining whether or not a But if it can be said that the language was person of ordinary prudence would have unwarranted by the record, it is not such an gone upon the track without taking further impropriety as will require a reversal of the precautions. The trial court submitted only judgment. It is not likely that it caused the one ground of negligence, and that was the rendition of an unmerited verdict. failure to give the statutory signals. The

The judgment of the district court is af. state of the evidence was not such as to re

firmed. quire the court to hold as a matter of law that they were given. There was an issue of fact for the jury.

TEXAS & P. RY. CO. v. HUBBARD. [4] Appellant presents the following as

(No. 1276.) signment:

(Court of Civil Appeals of Texas. Texarkana. “The court erred in granting M. B. Parch

July 4, 1914. Rebearing Denied man the right to discuss before the jury mat

Oct. 15, 1914.) ters of supposed negligence on the part of the railway company in leaving the train on the 1. APPEAL AND ERBOR ( 501*)_RESERVATION side track emitting steam, which had been with

OF GROUNDS OF REVIEW-EXCEPTIONS. drawn from the jury and not submitted to them

Assignments of error, predicating error by the charge of the court, as is shown by bill upon the giving and refusing of instructions, of exceptions. No. 1."

could not be considered, where no bill of excep

tions was taken to the charges as required by In their pleadings the appellees had al- the latest law. leged that the appellant was guilty of negli- [Ed. Note. For other cases, see Appeal and gence in having an engine and train of cars Error, Cent. Dig. $8 2300–2305; Dec. Dig.

501.*) standing upon the side track and too near the crossing, and in permitting steam to escape 2. RELEASE (8 57*)-EVIDENCE-WEIGHT AND

SUFFICIENCY. with a loud noise from the engine. But the

In an action for personal injuries, evidence court did not submit that issue. The bill of as to plaintiff's condition when he executed a exceptions as qualified shows that the attor- release about 14 hours after the accident and ney for the appellant spoke of this engine ing that the amount paid him was for expenses,

while in the hospital, and as to his understandstanding upon the side track and emitting held to support a verdict for plaintiff. steam, and stated that, according to the testi- [Ed. Note.-For other cases, see Release, mony of the plaintiffs' witnesses, this noise Cent. Dig. $$ 106-108; Dec. Dig. $ 57.*] was so loud that they were unable to hear 3. RELEASE_(8 15*)-VALIDITY-CAPACITY TO the bell or the whistle of the locomotive;

EXECUTE RELEASE.

A release of a claim for damages for perthat those witnesses had not said that the sonal injuries, executed while a party was in signals were not given, but that they did not la semiconscious condition to such an extent *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

that he did not know what he was doing, was conscious, and was taken to the hospital of not binding upon him.

the appellant at Marshall. On the way to [Ed. Note. For other cases, see Release, Cent. the hospital appellee regained consciousness. Dig. 8 30; Dec. Dig. § 15.*)

After arriving at the hospital he was given Appeal from District Court, Harrison a drink of whisky by the nurse, and the atCounty; H. T. Lyttleton, Judge.

tending physician administered a hypodermic Action by John Hubbard against the Texas of morphine to ease the pain and quiet him, & Pacific Railway Company. From a judg- all of which, according to the evidence, was ment for plaintiff, defendant appeals. Af- the proper and necessary thing to give appelfirmed.

lee at the time. Appellee became easy and F. H. Prendergast, of Marshall, for appel- passed into a sleep. It appears that between lant. Lane & Lane and M. B. Parchman, all 3 and 4 o'clock of the following afternoon,

which was about 14 hours after the injury of Marshall, for appellee.

was received, the appellee signed a written

release, the effect of which was to make full LEVY, J. The appellee brought the suit settlement with the appellant for all injuries to recover damages claimed to have been re- received on the occasion in question, for the ceived by him on October 20, 1911, while he sum of $50. The effect of appellee's testiwas a passenger on the railroad. The appel mony is: lant set up in its answer that the plaintiff

“I do not remember signing any papers givwas injured and that he settled his claim ing defendant or any other person a release to with the railway company, and the railway a claim for damages sustained by me. I do company paid him $50 and took a receipt in not remember signing such paper, because my full for all damages sustained by him. The believe, by the medicine administered by the

mind was in a dazed condition, caused so, I plaintiff, by supplemental petition, averred physician at the hospital for the purpose of that if he ever signed the release set up by relieving the great pain and distress from which the defendant, it was at a time when his 1 suffered after my admission to the hospital. mind was in a dazed or unconscious state, was one of great bodily pain and distress, which

My condition shortly after going to the hospital due to pain and suffering from the injury did not stop until the medicine was given me and morphine and medicine taken to ease the by the doctor, after which I was either totally pain, and that the agents of the defendant, unconscious or in a dazed, semiconscious condiknowing of his condition, fraudulently took advantage of his condition and procured the

According to the testimony of the claim release, and, further, that if he ever received agent and the physician, the appellee was the $50 mentioned it was by way of check, entirely rational, and knew what he was doand was given to and received by him to ing, and was willing to make the settlement enable him to get home, and not in settle at the time the instrument was signed. If ment or part settlement of his claim, and it be true that the appellee was in a semithat he was willing to have it credited on conscious condition to such an extent that any judgment he might recover. There was he did not know what he was doing, and a verdict and judgment for the appellee for while in such condition signed the release $2,999, less $50. As no question on appeal and received the draft, the release would not is made in respect to negligence, we must be binding on him. And in view of appellee's assume that negligence as a fact was proven further evidence that he took and cashed the or conceded. The only issues submitted to draft the afternoon of the second day, with the jury were with reference to the release the understanding on his part at the time and the amount of damages.

that the doctor had given it to him in order [1] The second, third, fourth, seventh, and to pay his expenses to the end of his journey, eighth assignments predicate error upon the it cannot be said, as a matter of law, that he giving and refusing of charges. As there knowingly accepted the check with the underwas no bill of exceptions taken to the charg- standing and intention of making a settlees, as required by the latest law, we are

ment. It is believed by a majority of the without authority to consider the assign- court that there is sufficient evidence to supments and the propositions thereunder. Ry. port the finding of the jury as involved in Co. v. Phebe Moody, 169 S. W. 1057, this day this appeal. decided by this court.

The tenth assignment contends that the [2, 3] The ninth assignment predicates er verdict of the jury is excessive in amount. ror on the part of the court in not granting If credence be given to the plaintiff's account a new trial, upon the ground that the verdict of his injuries, the verdict is not excessive. of the jury is contrary to the evidence. The And there is nothing in the record to suggest point made is that the circumstance sur- that the jury did not carefully and deliberrounding the settlement are not sufficient to ately, without passion or prejudice, award entitle the plaintiff to disregard or set aside such damages as they concluded the appellee the settlement he made. Between 1 and 2 had suffered. We, therefore, overrule the aso'clock at night, while à passenger, the ap- signment. pellee received injuries and was rendered un- The judgment is affirmed.

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