the failure of the petition to aver that such , testimony, which is all there is to support it, receipts were obtained does not, in view of shows that he is entitled to a much less sum. all the allegations, render the petition fatal. We have carefully read all the evidence, and ly defective.

are of the opinion it is insufficient to support The court also sustained several special ex- appellee's counterclaim in excess of $92.25. ceptions; but we will not discuss them. It His testimony makes it very clear that this is to be presumed, we think, that appellant sum is a reasonable compensation for all the would have corrected by amendment any labor and material furnished by him, and informal omission or defect in his petition cludes a profit or compensation to him as called for by a special exception had the contractor, so that the items of “20 per cent. court overruled the general demurrer. . It added on to cover something he may have certainly would be useless to so attempt after overlooked" and $52 for his personal services the court had ruled that the petition was were improperly allowed. They constituted wholly bad on the general exception.

in effect a double recovery. The judgment of It is ordered that the judgment be reversed, the county court of Tarrant county for civil and the cause remanded.

cases is therefore reversed, and judgment here rendered in favor of appellant for the amount sued for, less $227.25, or the aggre

gate of the sum paid during the trial, and GAMER CO. v. NEWBERG.

the account proved. (Court of Civil Appeals of Texas. Ft. Worth. Reversed and rendered for appellant.


Where plaintiff's account for labor and materials on a plumbing job could not properly BLACK v. TEXAS & P. RY. CO. amount to more than $92.25, including profit to him as a contractor, items of 20 per cent. added (Court of Civil Appeals of Texas. Ft. Worth.

Nov. 1, 1913. Rehearing Deto cover matters possibly overlooked and $52

nied Nov. 29, 1913.) for personal services were in the nature of a double recovery, and not permissible.


($ 47*)-SURVIVORSHIP. Appeal from Tarrant County Court; Chas.

In an action by a surviving widow for perT. Prewett, Judge.

sonal injuries to her deceased husband, the peAction by the Gamer Company against c.tition, which did not allege whether the injuries A. Newberg, with counterclaim by defend-received did or did not result in his death, failant. Judgment for plaintiff, and it appeals. Civ. St. 1911, art. 4694, providing an action for

ed to state a cause of action, either under Rev. Reversed, and judgment for a certain amount wrongful death, or article 5686, providing that rendered for plaintiff.

causes of action for personal injuries other than

those resulting in death shall not abate by reaF. H. Haddix, of Ft. Worth, for appellant. son of the death of the injured person; the latCrenshaw & Boykin, of Ft. Worth, for appel- ter action not surviving at common law, and the

former being wholly a creature of statute. lee.

[Ed. Note.-For other cases, see Abatement SPEER, J. Chas. Gamer sued C. A. New-Dec. Dig. $ 54 ;* Death, Cent. Dig. § 61; Dec.

and Revival, Cent, Dig. 88 255–258, 261-270; berg to recover $299.20 upon a verified ac- Dig. § 47.*] count for certain plumbing materials sold 2. ABATEMENT AND Revival ($ 54*)—PERSONand delivered by the plaintiff to the defend- AL INJURIES-DEATH OF PARTY. ant. The defendant answered, pleading a

No action can be maintained under Rev. counterclaim of $163 according to an itemiz: of action for personal injuries not resulting in

Civ. St. 1911, art. 5686, providing that rights ed account for labor and material furnished death shall survive, unless the injury did not to plaintiff in making certain plumbing re- cause decedent's death. pairs. The defendant admitted the correct- [Ed. Note.-For other cases, see Abatement ness of plaintiff's account, except the sum of and Revival, Cent. Dig. $$ 255,258, 261-270:

Dec. Dig. $ 54.*] $15, and during the progress of the trial paid $135 in open court. A jury trial resulted in

Appeal from District Court, Taylor Couna verdict and judgment in favor of plaintiff ty; Thomas L. Blanton, Judge.

Action by Mrs. W. C. Black against the for the sum of $11.20, and the plaintiff has

Texas & Pacific Railway Company. From a appealed. The admission of certain testimony is judgment for defendant, plaintiff appeals.

Affirmed. complained of in the first assignment of error; but appellee insists that the error has Scarborough & Hickman, of Abilene, for been waived since the same or similar testi- appellant. Cunningham & Sewell, of Abimony was adduced by appellant himself. lene, for appellee. But, however this may be, a disposition of this assignment becomes unnecessary, for SPEER, J. Mrs. W. C. Black, the survivwe are compelled to sustain the remaining | ing widow of W. C. Black, who died on about assignments to the effect that the judgment the 1st of June, 1912, brought this suit is not supported by the evidence. Neces against the Texas & Pacific Railway Comsarily, the verdict and judgment allow ap- pany to recover damages for alleged personal pellee's full counterclaim, while his own injuries received by the deceased, and, from

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


a judgment sustaining a general demurrer to show knowledge on the part of the witness that her petition and dismissing her cause of L. was assumed to be acting as the agent of all

of the defendants in the sale of the stock to A. action, has appealed.

and a ratification of his own acts as such. [1, 2] It is unnecessary for us to state the

[Ed. Note. For other cases, see Malicious Proscharacter of injuries received by the deceas-ecution, Cent. Dig. 88 117-124; Dec. Dig. $ 58.*] ed or the grounds of negligence relied on by 3. EVIDENCE (8 317*)-HEABSAY. appellant, since these could in no manner In an action for wrongful garnishment affect the conclusion we have reached. Ap arising out of plaintiff's signing as surety notes pellant's suit is not a death action brought idence that during the negotiations for the sale

given by A. for the price of corporate stock, eyunder article 4694, Revised Civil Statutes F. told plaintiff that L., who was attempting 1911, for it is nowhere alleged that the in- to complete the transaction, was to receive from juries received by the deceased resulted in defendants $1,000 of the stock as a commission

for making the sale was objectionable as hearhis death. The cause of action in deceased's

say. favor abated at common law, and did not [Ed. Note.-For other cases, see Evidence, survive to his heirs and legal representatives, Cent. Dig. 88 1174–1192; Dec. Dig. $ 317.*] unless it comes within the scope of article 4. EVIDENCE (8 471*)-CONCLUSION OF WIT5686, Revised Civil Statutes 1911. That article provides that causes of action for per question to plaintiff, asking him, from the man.

In an action for wrongful garnishment, a sonal injuries other than those resulting in agement of his business, his experience, capital, death shall not abate by reason of the death etc., what his reasonable income would be for of the injured person. Appellant's petition, the next three years after he was closed out, however, nowhere alleges that the deceased's if he had not been interfered with by reason

of the garnishment, was objectionable as calling injuries did not result in his death. She, for a conclusion ; 'it being the province of the therefore, has not brought herself within the jury to estimate the profits plaintiff would have article last cited. Ellyson v. I. & G. N. R. made in the future from all the facts and cir

cumstances in evidence. Co., 33 Tex. Civ. App. 1, 75 S. W. 868. The court properly sustained the general de Cent. Dig. 88 2149-2185; Dec. Dig. $ 471.*]

[Ed._Note.-For other cases, see Evidence, murrer to appellant's petition, and the judg. 5. TRIAL (& 256*)-INSTRUCTIONS–MEASURE ment is affirmed.

OF DAMAGES. Affirmed.

In an action for wrongful garnishment, an instruction that if the jury found that the writ was wrongfully issued, plaintiff should recover for such actual loss as was the natural, direct,

and proximate result of the service of the writs BENNETT et al. v. FOSTER.

was not objectionable as failing to give the jury (Court of Civil Appeals of Texas. Ft. Worth. any rule for measuring such actual damages,

but was good as far as it went; it being the Nov. 1, 1913.)

duty of defendants to request a more specific in1. MALICIOUS PROSECUTION ($ 58*)_WRONG-struction if they desired it.


Dig. 88 628-641; Dec. Dig. 8 256.*] In an action for wrongful garnishment, in 6. TRIAL ($ 251*) – INSTRUCTIONS — APPLICAa suit against plaintiff as surety on notes exe

BILITY TO PLEADING. cuted for the value of stock sold to A., evidence

Where no actual damages were claimed for that plaintiff was induced to sign the notes as the levy of a garnishment, the court properly surety by the representations of L., who was refused a request to charge that the jury should negotiating the transaction, that A.'s father measure the actual damages by the reasonable would advance money with which to pay off the market value of the property, taken with the lenotes as soon as the sale of the stock to his son gal interest from the time of taking to the time was consummated, etc., was objectionable as a

of the trial. mere expression of opinion on L.'s part, on which plaintiff had no right to rely.

[Ed. Note.-For other cases, see Trial, Cent.

Dig. $S 587–595; Dec. Dig. § 251.*] (Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. 88 117-124; Dec. Dig. $| 7. TRIAL (8261*) - INSTRUCTIONS — PARTIAL 58.*]


Where an instruction is partially bad, it 2. MALICIOUS PROSECUTION ($ 58*)_WRONG

may be entirely refused. FUL GARNISHMENT-EVIDENCE. Where, in an action for alleged wrongful

[Ed. Note.-For other cases, see Trial, Cent. garnishment arising out of plaintiff's signing as

Dig. $8 484, 660, 671, 673, 675; Dec. Dig. $ surety notes of A. given by him in a stock 261.*] transaction, plaintiff claimed that he was induc- 8. MALICIOUS PROSECUTION ($ 58*)_WRONGed to sign the notes by L., and it was an issue FUL GARNISHMENT-PLEADING EFFORT TO in the case whether L. was an agent of defend

COMPROMISE DEBT. ants, evidence by defendant B., who conducted In an action for wrongful garnishment, it the negotiations in behalf of the other defend- was not error to overrule defendants' special exants as well as himself, that during their pen-ception to a portion of plaintiff's petition, alleg, dency plaintiff, A., and L. all came to the cor- ing an effort to compromise the debt for which poration's plant, investigated its financial con

the former suit was instituted, made prior to dition, and later L told him that plaintiff the garnishment, and to permit proof thereof. would make the trade if witness would give him

[Ed. Note. For other cases, see Malicious Pros110 shares of stock in the corporation, which ecution, Cent. Dig. 88 117–124; Dec. Dig. $ 58.* ] witness refused to do, and thereafter plaintiff and L. told witness that F., who was admitted-9. MALICIOUS PROSECUTION (8 52*) MALIly defendants' agent, had agreed to give 10 CIOUS ISSUANCE OF WRIT-EXEMPLARY DANshares of his stock coming to him as a commis. sion on the sale in order that the trade might Where, in an action for wrongful garnishbe consummated, was admissible as tending to I ment, plaintiff's petition alleged that the gar•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


nishment writ, as well as the attachment, was (stituted by J. S. Foster against the plaintiffs sued out wrongfully and maliciously and within the former suit, to recover damages reout probable cause, and actual damages were claimed, they were recoverable if proved; and sulting from the wrongful issuance and servhence exceptions to the claim for exemplary ice of the writ of garnishment. He alleged damages, on the ground that no actual damages that he was a surety only upon the note were sufficiently pleaded, were properly overruled. upon which the former suit was instituted, (Ed. Note.-For other cases,

see Malicious Prosecution, Cent. Dig. 8 100; Dec. Dig. $ 52.*) note, for the reason that he was induced to

and that he was not legally liable upon said 10. MALICIOUS PROSECUTION ($ 67*)—WRONG- sign the same by certain false and frauduFUL GARNISHMENT-DAMAGES.

Where, in an action for wrongful garnish- lent representations made to him by the ment, plaintiff claimed that the levy and sub-agents of the plaintiffs in the former suit. jection of certain shares of corporate stock re- In the present suit a judgment was rendered sulted in damage, and that he lost an opportunity to exchange the stock for certain vendor's in favor of Foster for the sum of $3,000 as lien notes, the claim for the value of such notes actual damages, from which the defendants with interest was a proper element of damage. have appealed.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent.Dig. 88 155, 156; Dec. Dig. 8 67.*]

In his petition Foster alleges that by 11. MALICIOUS PROSECUTION (8 67*)-WRONG

reason of the service of the writ of garnishFUL GABNISHMENT Loss OF BUSINESS

ment upon the Seymour Cotton Oil Company PROFITS.

he was prevented from consummating a Loss of prospective profits in plaintiff's trade which had theretofore been negotiated, business as the result of a wrongful issuance and service of garnishment cannot be recovered and by which he could and would have exas actual damages, but may be looked to to es- changed his 26 shares of stock in that comtimate punitive damages, if a proper predicate pany for vendor's lien notes for the prinis established therefor.

cipal sum of $2,600 and bearing interest at [Ed. Note. For other cases, see Malicious Pros; the rate of 10 per cent. per annum. He alecution, Cent.Dig. 88 155, 156; Dec. Dig. 8 67.*] 12. MalicioUS PROSECUTION (8 64*)_WRONG- leged that at the time of the service of the

FUL GABNISHMENT DAMAGES Loss of garnishment his stock was not worth more PBOFITS-EVIDENCE.

than 80 cents on the dollar of its face value, In an action for wrongful garnishment al- and that by this trade he would have releged to have resulted in the loss of plaintiff's alized 100 cents on the dollar, and would business as a broker, evidence held insufficient to establish the extent of plaintiff's loss and also have realized interest upon the notes the value of his business, and not to justify a during the pendency of the former suit. He recovery of the profits he might have made in further alleged that since the service of the succeeding years.

[Ed. Note.-For other cases, see Malicious Pros-writ no revenue had been derived from the ecution, Cent.Dig. $8 151-153; Dec. Dig. 8 64.*] stock. The damages claimed for the pro

curement and service of the garnishment was Appeal from District Court, Baylor Coun- $520, the difference between the face value ty; Jo. A. P. Dickson, Judge.

of the stock and its real value, and $758.26 Action by J. S. Foster against R. G. Ben-for interest which he would have realized nett and others. Judgment for plaintiff, and upon the vendor's lien notes had said trade defendants appeal. Reversed.

been consummated. Taylor & Humphrey, of Henrietta, Sporer In another paragraph of the petition plain& McClure, of Jacksboro, and J. A. Wheat, of tiff alleged that the writs of attachment and Seymour, for appellants. D. A. Holman and garnishment were sued out without probable Glasgow & Kenan, all of Seymour, for ap- cause therefor, and that in procuring them pellee.

the defendants were actuated by malice;

that for a period of 10 years next preceding DUNKLIN, J. This is the second appeal the institution of that suit plaintiff was “enin this case, the disposition of the former gaged as trader and broker in buying and appeal being reported in 152 S. W. 233. In selling and trading in corporation stock, a suit other than the present R. G. Bennett, vendor's lien notes, and real estate and gin W. A. Bennett, A. Power, and E. D. Power property as his occupation and support of sued Chas. W. Abbott, and J. S. Foster upon himself and his family, which was well three promissory notes executed by them, known to defendants.” He further alleged and also procured the issuance of an at- that at the time of the levy of the writs he tachment upon an affidavit that Chas. W. had a capital of from $15,000 to $20,000, Abbott was insolvent, and that J. S. Foster which was employed in the prosecution of had disposed of his property in part for the his business, also an unimpaired credit, and purpose of defrauding his creditors. The that for the period of 10 years next preattachment so procured was levied on cer- ceding the levy of the writs he had realized tain real estate belonging to Foster. Later a annual profits from his business of $2,000 ; writ of garnishment was sued out and served that by reason of the service of the writs upon the Seymour Cotton Oil Company, in his credit has been impaired, and he had which company J. S. Foster owned 26 shares been left without sufficient capital to prosof the capital stock, and which was subject- ecute his business, resulting in a complete ed to the writ. The present suit was in-breaking up of his business; that by reason

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

of the service of the writ he had been unable, of the service of the writ of garnishment to sell his capital stock garnished, and he mentioned above. had been thereby deprived of its use and [1] Plaintiff testified in part as follows: benefit. Following those allegations occur “I was induced to sign three notes by the the following: "That from plaintiff's past representations which Fuller had made to experience in the management of said busi- me that the stock was worth $1.14 on the ness, and from the annual earnings and in-dollar; that there was enough stock and come made by him therein for the past 10 merchandise, accounts and money, on hand years, he would reasonably have made $2,- with which to meet all of the indebtedness 500 per annum, all of which he must lose of the mill due and owing to the First Naand be deprived of on account of the wrong. tional Bank, and to the statements that ful, malicious, and oppressive use of the Larkin made to me about Abbott, he said writs aforesaid, to his damage in the sum that Abbott's father was very wealthy, that of $7,500 for the loss of his said earnings Mr. Abbott had married lately into a very therefrom. And for damages to plaintiff's wealthy family, and that his wife was spendcredit—the inconvenience, humiliation, and ing too much money; that Abbott's father trouble occasioned by the breaking up of his had spoken to him some two or three times, business aforesaid, and because defendants and he, Larkin, said that as soon as Abbott's in suing out and by service of said writs of father found out the trade had been made, attachment and garnishment did so wrong- the money would be sent him, and that the fully, and were actuated by malice, and with money would be sent him in 30 days, and intent to vex and harass and oppress the that he, Larkin, was satisfied that it would plaintiff, and without probable cause—the be here in 30 days. These statements insaid defendants, R. G. Bennett, W. A. Ben- duced me to sign the notes.” That part of nett, A. Power, and E. D. Power became li- the testimony quoted relative to what Larkin able to the plaintiff in the sum of $20,000 in told the plaintiff was objected to by the deexemplary damages.”

fendants at the time it was offered, one of It was further alleged in plaintiff's peti- the grounds of objection being, in effect, that tion that the three promissory notes upon such statements were hearsay, and not such which the former suit was instituted were as plaintiff had the legal right to reply on given in part payment for 104 shares of as an inducement to sign the note. We are stock in the Seymour Mill, Elevator & Light of the opinion that upon this objection the Company, which were sold to Abbott by the testimony should have been excluded. Cleardefendants in this case, acting through their ly the gist of the alleged statements by Laragents, M. R. Fuller, and T. W. Larkin; kin was an assurance that Abbott's father that Foster was surety only upon said notes would advance the money with which to for Abbott, and was induced to sign the pay off the three notes signed by his son and same upon the false and fraudulent repre- Foster as soon as the sale of the stock to sentations made to him by said agents; in his son was consummated. This was merely effect, that the stock then being sold was an expression of opinion and belief on the worth $1.14 for each dollar shown upon the part of Larkin that Abbott's father, who face of the stock; and that Abbott's father, was in no way liable upon the notes, would who was wealthy, and who was anxious to advance to his son funds sufficient to satisfy get his son, C. W. Abbott, into business, them, and such opinion would not constitute would liquidate those notes so given, by ad- a legal basis for Foster to escape liability vancements to his son as soon as C. W. Ab- upon the notes. bott could get settled into some kind of busi [2] The issue whether or not Larkin was

And further that the indebtedness of the agent of the defendants in this case in the Seymour Mill, Elevator & Light Com- the sale of the stock above mentioned to pany at that time would not exceed $13,000 Abbott was sharply contested by the defendover and above such indebtedness, as ac- ants, each and all of whom testified that counts and goods on hand belonging to the Fuller was the sole agent to negotiate such company were sufficient to liquidate; that sale; that Larkin was never employed by each and all of said representations were them, and never acted as such agent withuntrue; that at the time said representa- in their knowledge; and error has been astions were made said company was insol- signed to the refusal of an instruction revent, the stock so sold worthless, and that by quested by defendants that the jury should reason of such misrepresentations plaintiff not consider, for any purpose, the testimony was not liable in any amount upon the prom- of plaintiff, Foster, relative to the alleged issory notes so signed by him. The jury misrepresentations made to him by Larkin, were instructed, in effect, that if the alleged and which he says in part induced him to misrepresentations were made to Foster for execute the notes. The defendant W. A. the purpose of inducing him to sign the notes Bennett, who seems to have conducted the as surety for Abbott, and that he was induced negotiations in behalf of the other defendthereby to sign them, then he was not liable ants, as well as for himself, in the sale of thereon, and that if he was not liable upon the stock, further testified that during those those notes, then he could recover the dam- negotiations Foster, Abbott, and Larkin all ages actually sustained by him as a result came down to the mill and investigated its


financial condition; that later Larkin came in the petition for a wrongful levy of the to him and told him that Foster would make writ of attachment, and it was possible erthe trade if Bennett would give Foster 110 ror for the court to base any recovery of sbares of stock, which Bennett refused to actual damages upon a wrongful issuance of do, and thereafter Foster and Larkin came that writ, but the instruction is not assailed to the mill and told Bennett that Fuller bad upon that ground; the only objection being agreed to give up 10 shares of stock coming that such instruction did not give the jury to him as a commission on the sale in order any rule for measuring such actual damages. that the trade might be consummated, to Aside from the criticism above suggested by which proposition Bennett agreed after Ful- us, we think the instruction was good so far ler instructed him to do so. We are of the as it went; and, if the defendants desired a opinion that this evidence tended to show, more specific direction to the jury for the although perhaps to a slight extent only, a computation of the damages, they should knowledge on the part of W. A. Bennett that have presented to the trial judge a request Larkin was assuming to act as the agent of therefor. the defendants in the sale of the stock to [6, 7] Another error is assigned to the reAbbott, and a consequent ratification of his fusal of plaintiff's requested instruction No. acts as such agent; and therefore appel- | 14. In part, that instruction was that the lant's tenth assignment of error is over- jury should measure the actual damages for ruled.

the wrongful suing out of the attachment [3] Plaintiff further testified that during and garnishment by the reasonable market the negotiations for the sale of the stock to value of the property taken, with the legal Abbott, Fuller told plaintiff that Larkin was rate of interest thereon from the time of to receive from the defendants $1,000 of the taking to the time of the trial. As no actual stock in the same company as a commission damages were claimed for the levy of the for making the sale to Abbott. This testi- writ of attachment, this portion of the inmony was objected to on the ground that it struction was inapplicable; and, as other was hearsay. Evidently it was offered for portions of the requested instruction to the the purpose of proving Larkin's agency to actual loss sustained by the plaintiff for sell the stock to Abbott, and clearly it was wrongfully suing out and serving the writ subject to the objection urged. Accordingly of garnishment were somewhat confusing appellant's eleventh assignment of error is and inapt, there was no error in refusing sustained.

the entire instruction. [4] The following question was propound- Another error assigned is to the refusal of ed to the plaintiff: “Now, from the manage- an instruction requested by the defendants ment of your business, your experience in that in no event could plaintiff recover the the management of that business, and the 10 per cent. interest stipulated in the vencapital you had, can you reasonably state to dor's lien notes for which he would have the jury what your reasonable income would traded his stock that was garnished. This have been for the next three years after contention was discussed and decided adyou were closed out, if you had not been versely to appellants upon the former apinterfered with?” To this question plaintiff peal, and we still concur in the views there answered as follows: "I ought to have made expressed by us. as much in the next three years as I had The trial court instructed the jury quite made, which was about $2,000 or $2,500 per at length upon the issue whether or not annum." Defendant objected to the testi- Fuller and Larkin were legally defendant's mony upon the ground that it was a conclu- agents in the trade by which the stock was sion. This testimony was in support of plain- sold to Abbott, and plaintiff, Foster, was intiff's claim for loss of profits in his business duced to sign Abbott's notes given in conoccasioned by the service of the writ of gar- sideration therefor. By the sixth, seventh, nishment. It was exclusively the province and eighth assignments of error complaint of the jury to estimate the profits that plain- is made of errors in those instructions. One tiff would make in the future, from all the of the objections urged to the instructions facts and circumstances in evidence, and the is that they are upon the weight of the eviobjection made to this testimony should dence in assuming that Larkin was a joint have been sustained. It follows from this agent of defendants with Fuller. We do not conclusion that appellant's twenty-fourth as think the instructions are subject to this signment of error should be sustained.

criticism. Another ground of complaint is (5] Complaint is made of two different par- that no evidence was introduced tending to agraphs of the court's charge in which the show the agency of Larkin. This objection jury were instructed, in effect, that in the was untenable, for the reason that, as notevent of a finding that the writs of garnish- ed already, we think there was some eviment and attachment were wrongfully is- dence tending to establish such agency. We sued, plaintiff should be allowed damages do not wish to be understood as approving for such actual loss as was the natural, di- the instructions given by the court, and last rect, and proximate result of the service of referred to, as we think they are subject to such writs. No actual damage was claimed | other criticisms not presented by the assign

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