upon the ground that the goods were sold upon one order, and constituted but one account, and could not be divided up and separate suits maintained thereon, as was being attempted; also, a counterclaim for damages, by reason of the alleged failure of the goods delivered to comply with the sample, substantially as pleaded in the previous case. Appellees, however, contended that, on account of the delay in shipping the last goods, they had agreed with appellant upon an extension for the time of payment of this part of the account to a date beyond that upon which the former suit was instituted, and it could not, therefore, be included therein. Appellant denied this, and claimed that the extension applied to the whole account. Appellees did not plead the former judgment in bar of the counterclaim asserted by appellant herein. The court below, however, instructed the jury to disregard that part of appellant's counterclaim which represented the damage alleged to have resulted from the deficiencies in the goods for the price of which the former recovery was had. In this we think there was error which will necessitate a reversal of the judgment. Appellees were not entitled to avail themselves of the previous judgment as an estoppel against the counterclaim asserted by appellant, without pleading it. Scarbrough v. Alcorn, 74 Tex. 360, 12 S. W. 72. Had this estoppel been properly pleaded, we think the action of the court would still have been erroneous, although there is much conflict in the authorities upon this question. Mr. Freeman, in his work on Judgments (section 279), after discussing the subject at some length, concludes as follows: "The language generally employed in treating of this subject is such as to indicate that, to conclude a claim of set-off, it must be presented to the jury, and some evidence given upon it. But it has been decided that a set-off not withdrawn becomes res adjudicata, though no evidence is given to support it, and the defendant was not prepared to give such evidence at the trial of the former case. This seems to be a just and reasonable decision. There is as much propriety in requiring a defendant either to litigate or withdraw his demands as there is in requiring the plaintiff to support or withdraw his alleged causes of action." In 2 Black, Judgm. § 764, it is said: "If the defendant, in his answer, sets up and claims a set-off, but the record shows that on the trial of the action the court excluded all evidence of the demand sought to be set off, and gave judgment for the plaintiff, that judgment cannot be pleaded or claimed as an estoppel in an action afterwards brought by the defendant to enforce the same claim." We are not aware that the identical question has been decided in this state, but a full discussion of the effect of a judgment as res adjudicata where the pleading presents the issue, but the evidence shows it was not in fact litigated, will

be found in the case of Freeman v. McAninch (Tex. Sup.) 27 S. W. 97. This cause, however, differs from that, in that here the record itself shows no evidence was offered to sustain the counterclaim, while in that the judgment rendered imported a finding upon the issue. Pishaway v. Runnels, 71 Tex. 352, 9 S. W. 260. In the case of Burger v. Young, 78 Tex. 656, 15 S. W. 107, the effect of the decision seems to be that where a plaintiff in trespass to try title, who is present, refuses to introduce any evidence to sustain his alleged cause of action, it is equivalent to his taking a nonsuit, and a judgment upon the merits should not be rendered against him. As to this counterclaim, appellant was the plaintiff; and inasmuch as the record shows affirmatively that he was not present, prosecuting his suit, the only effect that should be given to that judgment, in reference thereto, is a dismissal for want of prosecution.

error.

The court below also refused to charge the jury upon the effect of the former adjudication as a bar to the maintenance of this suit by appellees. In this we think there was The law upon this subject we find tersely stated in 2 Black, Judgm. § 736, as follows: "According to the doctrine of the bestconsidered cases, a continuous running account, for goods sold, money lent, work and labor, or the like, is an entire demand, not susceptible of division, and cannot be split up into several causes of action. And where suit has been brought for part of the items of such an account, omitting other items of the same account, which were due at the time, and judgment has been recovered therefor, such judgment is a bar to another action afterwards brought to recover for the items so omitted. But a former recovery in an action on book account will not bar a subsequent suit of the same nature for articles delivered previous to such recovery, but not adjudicated upon, on the ground that the time of payment had not then elapsed." Also, see Id. §§ 734, 735. In this case, appellees contended that an extension of the time for the payment of that part of the account herein sued upon had been given, but not as to that part upon which the recovery was had in the former suit, and thereby showed a clear right to maintain separate suits; but appellant denied this, and contended that this account had never been split with his consent, and that the extension applied to the entire bill, and thereby presented a case which required appellees to embrace all in one proceeding. These two theories should have been submitted to the jury in appropriate charges, leaving the contested issue of fact for their decision.

Numerous other questions are presented in an able brief in behalf of appellant, which probably will not arise in the same form upon another trial, and therefore will not be considered. The judgment of the court below will be reversed, and the cause remanded.

BELL et al. v. MARTIN.' (Court of Civil Appeals of Texas. Nov. 30, 1893.)

ASSAULT AND BATTERY-JUSTIFICATION-EVIDENCE

-INSTRUCTIONS-DAMAGES.

1. Plaintiff, at the invitation of two women boarding at defendant B.'s house, visited their room at 3 o'clock in the morning, and was assaulted and beaten by defendants B. and G., whose defense was that they thought plaintiff was a burglar. There was evidence that defendants were personally acquainted with plaintiff; that, while they were searching for the supposed burglar, an occupant of another room advised plaintiff of the search, and that he hid under the bed, at the request of the women; that B.'s wife entered the room, and, on discovering plaintiff, made an outery; that G. entered, and called on plaintiff by name to come out, and, when he did so, kicked plaintiff about the head; that B. then came in, and joined in the attack. Held to warrant a finding that defendants knew plaintiff was not a burglar, and that the assault was without justification.

2. Instructions which, standing by themselves, may be misleading, will not require a reversal if, when taken together with other instructions, they state the law correctly.

3. A verdict assessing the damages at $1,000 is not excessive where it appears that plaintiff's shoulder was dislocated, his head cut, and his person bruised.

Appeal from district court, Harris county; James Masterson, Judge.

Action by Frank Martin against John W. Bell and another. There was judgment for plaintiff, and defendants appeal. Affirmed. Jones & Garnett, for appellants. Hutcheson & Sears, for appellee.

WILLIAMS, J. Appellee, Martin, sued appellants, Bell and Gates, for damages for an assault and battery, alleging that they jointly assaulted him, and also that the assault was made by Gates as Bell's servant, and at Bell's instigation. Defendants denied. Gates pleaded specially, seeking to justify, on the ground that he took plaintiff for a burglar in Bell's house at night, and treated him only as was necessary in order to capture or expel him. Both parties denied that Bell participated in the infliction of the injuries on plaintiff, and denied, also, that Gates acted as Bell's servant or agent, or at his instigation, in assaulting plaintiff, if he did so. The case was tried by jury, and verdict and judgment rendered for plaintiff for $1,000. Their motion for new trial having been overruled, appellants prosecute this appeal.

There is much conflict in the evidence, from which, in view of the verdict, we find the following facts: Bell was the proprietor of a variety theater in the city of Houston, having in his employment quite a number of men and women. He and his wife also kept a boarding house, which we infer was in the same building as the theater, but apart from it, in which their employés boarded and had their sleeping apartments. By "a rule of the house," the women were prohibit

1 Rehearing denied January 11, 1894.

ed, under a penalty of a fine of five dollars, from receiving men in their sleeping rooms. Martin had been employed about the theater as a musician, and had his room in the boarding house, but had completed his engagement, and had made his preparations to leave. On the night before he was to take his leave, at 3 or 4 o'clock, the theater having just closed, he was invited by one of the fe male employés to go with her and another woman to her room, and did so. While he was there, talking to these women, Bell, Mrs. Bell, and Gates commenced to search the house for a burglar. Why they did so is one of the disputed points in the case; appellants claiming that there had been repeated alarms given during the night, and that just at this time a servant informed them that there was some one in the house; and appellee seeking to show by circumstances that they knew or suspected where he was, and instituted the search in order to find and beat him. The direct and pointed testimony of Mr. and Mrs. Bell and of Gates is against this contention of appellee, but the court is of the opinion that there are circumstances tending to establish it, sufficient to warrant the submission to the jury of the issue as to whether or not there was a previous agreement be tween the parties or an authority given by Bell to Gates to commit the assault. Gates was an employé of Bell; but it is plain that this assault was not in the line of his duty, as such, and the holding is that there were circumstances to show special authority from Bell, and an agreement between them for Gates to act as he did. While the search was proceeding, a person from another room went to that where appellee and his comThe panions were, and warned them of it. occupant of the room requested Martin to secrete himself, stating that, if he was discovered, she would be fined; and Martin, in order to save her from the infliction of the fine, got under the bed. After some maneuvering on the part of Mrs. Bell and Gates. who had separated themselves from Bell. Mrs. Bell went into the room where appellee was concealed, discovered him under the bed, and gave the alarm. Gates entered the room, called upon Martin by name to come out, and, upon his doing so, assaulted him by kicking him about the face and head. Bell, hearing the alarm, also came to the room, and joined in the attack while Gates was committing the assault upon Martin, striking him upon the head with his pistol. By the assault, serious injuries were inflicted on appellee, dislocating his shoulder, and cutting his head, and otherwise bruising him. None of the injuries were permanent in their character, but were sufficient, in the opinion of the court, to sustain the amount found by the jury.

The evidence was sufficient to warrant the jury in coming to the conclusion that all of the parties knew who Martin was when they found him, and knew that he was not a

burglar, and that the assault was made without any legal justification. Whether or not the appearances were such as to justify Gates and Bell in believing appellee was a burglar was a question which the court submitted to the jury by special charges asked by appellants, which were at least as favorable as they could require. We therefore conclude with the jury that a concerted attack was made by both the parties, with knowledge that it was no burglar they were assaulting. Had it been shown that appellee was in fact a burglar, still there was no evidence tending strongly to show that there was no necessity for appellants to beat him as they did in order to effect his capture or expulsion from the house. As to Bell's participation in the assault, there is a decided conflict of testimony, but the jury has deeided it in appellee's favor, and their finding in this particular is sustained.

"If

The first assignment of error complains of a passage in the charge as follows: Gates unlawfully assaulted plaintiff, he alone is liable; but, if Bell authorized him to do so, then both are liable." The point made is that the charge authorized the finding against Bell, though the evidence showed that the attack on plaintiff was justifiable. The answer is that this passage required an unlawful assault in order to make either defendant liable, and other instructions given informed the jury under what circumstances violence would be lawful. There may be an apparent conflict between this instruction and the previous one that "if Bell did not request Gates to assault plaintiff, and if he did not himself commit any unlawful assault upon plaintiff, find for him." This clause was too liberal to the defendants if it be understood to mean that a request from Bell to Gates was essential to make Bell lia ble if he did not personally assault plaintiff; and it was proper for the court to enlarge the scope of the instruction as it did in the clause first quoted, and in the special charge given at the request of the plaintiff, copied into the second assignment, to the effect that Bell would be liable if he acted with Gates in making an unlawful assault, or if Gates was acting as Bell's agent within the scope of his authority previously given, or at his instigation or abetment. There was no error in either instruction. But the point is made that there was no evidence to warrant the submission of the issue of any previous authority given by Bell to Gates to connect him with the assault. This is the most doubtful point in the case; but. as above shown, the court holds that there were circumstances sufficient to authorize the instructions.

The charges complained of in the third and fourth assignments are not, we think, open to the criticism that they authorized a verdict against both defendants upon proof of an assault by either. They simply supposed states of facts in which the plaintiff would

be entitled to a verdict, without undertaking to inform the jury as to which of the defendants would be liable. Other parts of the charge, especially the special charge on the subject, given at the request of the defendants, did that. Standing by themselves, these instructions might have misled the jury; but, taken in connection with the others, it is not probable they were misunderstood. There may have been unnecessary repetition in the instructions given, but the general charge did not contain a full expression of the law affecting Bell's liability, and the special charges were properly given in order to supply the omission. The repe titions were not calculated to unduly impress the jury with any particular view of the case, and their occurrence is not a ground for reversal.

The verdict is supported by the evidence, and in our judgment the damages are not excessive. Affirmed.

GALVESTON, H. & S. A. RY. CO. v.
DOWNEY.

(Court of Civil Appeals of Texas. Jan. 21. 1894.)

RAILROAD COMPANIES--KILLING STOCK-INTEREST. 1. Where defendant had torn down its fence for 200 feet, and plaintiff's mules went through such opening onto its track, and were run over, defendant is liable, under Rev. St. art. 4245, providing that a railroad company, if it fence its road, shall be liable only for want of ordinary care.

2. No interest on the value of the stock before judgment is recoverable.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by J. J. Downey against the Galveston, Harrisburg & San Antonio Railway Company for injury to stock. Judgment for plaintiff. Defendant appeals. Modified.

Upson & Bergstrom, for appellant.

NEILL, J. This is an appeal from a judg ment of $350 damages, with legal interest from the date of the accrual of his cause of action, rendered in appellee's favor, against appellant, for injuring his two mules by the locomotive and cars of appellant. Appellee alleged that the appellant failed to keep up its fence along its road; and that his mules entered thereon at a place where appellant's servants had left its fence down; and that, while on the track, they were, through the negligence of defendant's servants in operating its engine and cars, run over by its engine and cars, and thereby crippled, and so badly injured as to render them valueless. The appellant interposed a general demurrer and a general denial to appellee's petition. The case was tried by the court, without a jury, who rendered the judgment appealed from. The only assignment

of error questions the sufficiency of the evidence to sustain the judginent.

Conclusions of Fact.

On the 14th of July, 1891, appellant owned and operated a railroad extending through Val Verde county, Tex. Its road had been fenced prior to that time, but about 200 feet of the fence was then down, it having been torn down by appellant's servants for the purpose of building a material yard and spur. The appellee, who was then employed by the Southern Pacific Company, turned his mules loose on the range, and two of them went through where the fence was down, onto appellant's railroad, and were run over by one of its trains, which cut three legs off of one, and two off of the other. The mules were worth $175 each before they were injured, and nothing afterwards.

Conclusions of Law.

Our statute provides that every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways. Rev. St. art. 4245. There is nothing pleaded, nor was there any evidence introduced, to relieve appellant of this statutory liability; and its liability under this statute is clearly established by the facts. The statute quoted has been so construed as to limit the recovery of damages in cases of this character to the value of the stock killed or injured, and to deny interest on such value previous to judgment. Railroad Co. v. Muldrow, 54 Tex. 233; Railway Co. v. Carter (Tex. App.) 18 S. W. 196. As the judgment appealed from allowed such interest, it is to that extent erroneous; and for that reason it will be here reformed so as to affirm it for $350, and set it aside as to the $9.35, interest.

Rehearing denied.

TUFTS v. HODGES.

(Court of Civil Appeals of Texas. Sept. 26,

1894.)

APPEAL-JURISDICTIONAL AMOUNT.

Rev. St. art. 1382, provides that the court of civil appeals can entertain jurisdiction only when the amount in controversy exceeds $100. Held, that where, pending the trial of an action on a note for $80 secured by mortgage on personal property worth $150, the property is destroyed, and the action on the note is prosecuted, the court of civil appeals will not entertain an appeal.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by James W. Tufts against W. C. Hodges on eight promissory notes, and to foreclose a mortgage on personal property securing the same. Judgment was rendered in favor of defendant, and plaintiff appeals. Appeal dismissed.

Cobb & Avery, for appellant. J. W. Moore. for appellee.

RAINEY, J. Appellant sued appellee in the justice's court to recover on eight promissory notes, aggregating $80, and to foreclose a lien upon one soda fountain, worth $150, for which the notes were executed by appellee. Judgment was rendered for Hodges in the justice's court, and Tufts appealed to the county court. While the appeal was pending in the county court the soda fountain was destroyed by fire, and when the case was tried in that court the subject of controversy was the amount of the notes, $80, and interest. A trial in the county court resulted in a judgment in favor of Hodges, from which Tufts attempts to perfect an appeal to this court. We are met at the threshold of investigation with the proposition that this court has no jurisdiction of the appeal, as the amount in controversy does not exceed $100. This court can only entertain appeals from the county court when the amount in controversy exceeds $100, exclusive of interest and costs. Rev. St. art. 1382. The property on which the lien existed having been burned before the trial of the cause in the county court. it was eliminated from the controversy; and the only thing that was tried in the county court was the question of indebtedness, as evidenced by the notes, which amounted to $80, exclusive of interest and costs. amount in controversy not exceeding $100 at the time of the trial, the judgment of the county court was final, from which appellant could take no appeal. Appeal dismissed.

The

1. A question suggestive of the answer desired may be excluded.

2. In an action by an employé for injuries received in the course of duty, while riding on defendant's hand car, an instruction to find for plaintiff if the car was in a defective condition, and defendant was negligent in leaving it so. and plaintiff, while ignorant of such defect and without negligence on his part, was injured thereby, is not erroneous.

3. In an action for personal injuries, where the petition states that plaintiff was permanently and seriously injured in the spinal cord and the bones and muscles of his back; that he had suffered greatly, and would continue to suffer during the remainder of his life; that he had lost much time from labor, and before such injury was a robust man, capable of earning $80 per month,-and the testimony sustains such allegations, an instruction that the jury should find such sum as would compensate plaintiff for diminished earning capacity, and the reasonable value of time lost by reason of such injuries, is not erroneous.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by R. S. Smith against the Galveston, Harrisburg & San Antonio Railway Company. There was judgment for plaintiff, from which defendant appeals. Affirmed.

Upson & Bergstrom, for appellant. Lewy & West and John A. Green, Jr., for appellee.

FLY, J. This suit was instituted by appellee to recover $20,000 damages for personal injuries alleged to have been sustained by him on March 31, 1892, while employed by appellant as a section hand, said injuries being alleged to have occurred by reason of defective appliances and machinery on the hand car on which he was riding, which were used for the purpose of stopping and regu lating the speed of the car. It was alleged that the injuries were serious and perma nent, had caused great mental and physical suffering, and had caused the loss of much time from labor. Appellant answered by general demurrer, and that the injuries to appellee were caused by his own negligence and the negligence of his fellow servants, and not through any negligence on the part of appellant. The case was tried before a jury, and resulted in a verdict and judgment in favor of appellee for $5,000.

We conclude that the following facts are established by the record: On the 31st day of March, 1892, appellee, who was employed by appellant to lay rails on its track, in pursuance of his employment, was going, in company with 12 or 14 laborers, from Cibolo to his place of employment on a hand car. Appellee was holding to the brake beam when it was pulled back with great force, and appellee was dragged beneath the pro pelling lever of the car, and crushed to the floor. That, by this means, appellee was permanently injured in his spine and lungs, and was totally incapacitated for labor for about four months. That he had endured great mental and bodily suffering, and that before his injury he had earned from $60 to $150 per month, and since that time he had earned only $12 per month. That there is no probability that the condition of appellee will be come better, and it is possible that it will grow worse. Appellee was a healthy, robust man before he was injured, with an expect ancy of life of about 24 years. The injury to appellee occurred by reason of the unserviceable and defective condition of the brake and brake beam on the car, and the defective condition of the propeller and cog wheels, and the condition of the car was known to appellant, or could have been known by the exercise of reasonable care, and that the defective condition of the car was not known to appellee, who had been in the employ of appellant only two or three days.

The second assignment of error is without merit. The witness Carrington had testified

by depositions which were taken and used by appellee, and in the depositions he had testified fully as to the condition of the hand car upon which appellee was riding when the accident occurred. Carrington was piesent at the trial, and was introduced by appellant, and asked if he knew the car upon which appellee was riding; and he replied that he did not, but knew the three cars that were sent out that day, on one of which appellee was riding. A leading question was then put as to the condition of the brake rods on the cars, and, upon objection, the witness was not permitted to answer the question. This action of the court was prop er, and, if appellant desired the testimony, the question should have been so framed as not to be objectionable. The question was suggestive of the answer desired, and was properly excluded.

The third paragraph of the charge of the court is objected to, "because the jury are instructed to find for the plaintiff if they believe he was injured by said car, without confining them to a finding if such injury occurred proximately by reason of the defects in the car." The first four paragraphs of the charge are as follows: "First. The plaintiff, R. S. Smith, brings this suit against the G., H. & S. A. Ry., the defendant company, for personal injuries alleged by him to have been received while in defendant's employ, occasioned by the defendant's negligence in furnishing for the plaintiff's use a hand car without a brake rod, and with a defective brake lever and cog wheel, by reason of which he alleges he has received permanent injuries, and has suffered bodily and mental distress. Second. The defendant denies that the plaintiff was injured, and says that if he was injured, as alleged, his injuries were the result of his own negligence or that of his fellow servants; that the said brake rod was not missing; that said brake lever and cog wheel were in good condition; and that, if the same was not in good condition, the plaintiff knew the condition before he was injured, whereby defendant claims it is not liable. Third. If you believe from the testimony that the said hand car was in an un safe condition, by the reason of a missing brake, defective brake lever or cog wheel, and defendant company was guilty of neg ligence in furnishing the same, or in leaving it in that condition, and that the plaintiff was ignorant of its unsafe condition, and, without any negligence on his part, he was injured thereby, as alleged, then you will find for plaintiff. Fourth. On the other hand, you will find for the defendant if you be lieve from the testimony that the hand car was in a reasonably safe condition, or if the same was in an unsafe condition, yet the defendant company was not guilty of negli gence in furnishing it, or allowing it to remain in an unsafe condition, or the plaintiff, knowing its unsafe condition, continued to use it." We are of the opinion that the