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later appealed to the county court, and was [3] Pleadings are as essential to make an upon a verified account for merchandise issue in the justice court as in a court of charged to the defendant. The merchandise record. Moore v. Jordan, 67 Tex. 394, 3 S. shown in the account consisted of groceries W. 317; Maass v. Solinsky, 67 Tex. 290, 3 furnished by plaintiffs for the use of the S. W. 289. The issue presented by the inmembers of the defendant association during struction now under consideration was one their encampment near the town of Clifton, of estoppel. In other words, essentially it in Bosque county. The evidence is suffi- is that the defendant, having held out Alcient to show that at the request of the delen as its agent, and thereby induced the fendant's secretary plaintiffs furnished a plaintiffs to believe that he was its authorprice list of the goods, in reply to plaintiffs' ized agent to purchase the goods, is now letter to the defendant soliciting the account estopped to deny that he was such agent, for such supplies. The evidence further even though as a matter of fact no such shows that later A. A. Allen called up plain- agency existed. It is, well settled by the tiffs over the telephone and ordered the authorities that in order for plaintiffs to goods for and on behalf of the defendant, avail themselves of the benefits of this rule, stating, in effect, that he was authorized by it was necessary for them to specially plead the defendant so to do. The goods were fur- such estoppel. Swayne v. Insurance Co., 49 nished in obedience to this request. The S. W. 518; Wolf v. Galbraith, 39 Tex. Civ. evidence further shows that defendant en- App. 351, 87 S. W. 390. tered into a written contract with Allen, From the foregoing conclusions it follows whereby the latter contracted and agreed that the court erred in giving the instruction to board the boys during the encampment last noted, and for this error the judgment and to furnish all supplies necessary there must be reversed and the cause remanded. for, for a fixed sum. But this contract was all other assignments of error have been not known to the plaintiffs at the time the duly considered and are overruled. goods were furnished for which a recovery Reversed and remanded. was allowed. Whether or not Allen vas defendant's agent, authorized by it to purchase the goods upon defendant's account, was an issue sharply controverted by the defendant, GULF, C. & S. F. RY. CO. v. DAVIS et ox. and properly submitted in the court's charge. (Court of Civil Appeals of Texas. Ft. Worth.

June 28, 1913. Rehearing De[1] The court further instructed the jury,

nied Nov. 15, 1913.) in effect, that the defendant would be bound 1. Carriers ($ 316*)—CARRIAGE OF PASSENby the acts of Allen in the purchase of the GERS-PRESUMPTION-RES IPSA LOQUITUR. goods, if, by acts or words, or both, they fell while alighting from a railroad train owing

In an action by a female passenger who led plaintiffs to believe that Allen was their to her dress catching upon something, where agent, with authority to make such pur- there was no showing that it caught on any chases for the defendant, and that such acts screw or projection upon the platform, the docor words of the defendant were reasonably trine of res ipsa loquitur cannot be relied on to

raise an inference of negligence, because it calculated to induce the plaintiffs to so be would be basing inference on inference; the lieve, and that, acting upon such belief, they first inference being that by reason of the fall were induced to sell the goods upon the cred- there must have been some obstruction, and the

second that the defendant was negligent in fail. it of the defendant. One of the grounds ing to discover and remove the projection. upon which the instruction last noted is as [Ed. Note.-For other cases, see Carriers, sailed is that there was no pleading to war. Cent. Dig. $8 1261, 1262, 1283, 1285–1294; rant it.

The only pleading by plaintiff's Dec. Dig. § 316.*] shown in the transcript from the justice 2. CARRIERS (§ 318*)—CARRIAGE OF PASSEN. court to the county court consists of the veri

GERS-ACTIONS.

In an action against a railway company fied account, and it does not appear from for injuries received by a passenger who fell the record that any other pleading than while alighting from a car, a judgment in favor that was filed by plaintiffs in the county of the passenger cannot be upheld, where the

testimony showed that the accident was as reacourt after the case was appealed to that sonably attributable to a nonactionable cause court.

as to the company's negligence. [2] By article 759, Revised Civil Stat [Ed. Note.-For other cases, see Carriers, utes 1911, it is provided that when a case is Cent. Dig. $$ 1270, 1307–1314; Dec. Dig. $

318.*] removed by certiorari from the justice court 3. CARRIERS (§ 316*)—CARBIAGE OF Passento the county court, the plaintiff may plead

GERS-DUTY OF CARE. new matter which does not constitute a new While it is the duty of a railroad comcause of action, provided such pleading be pany to exercise a high degree of care to fur. in writing and filed in the cause, and this nish and maintain suitable cars and platforms

upon which passengers may move with safety, article of the statute applies also in cases it is not an insurer in this respect, and one in. of appeal from the justice court to the coun- jured upon a car platform has the burden of ty court. Slover v. McCormick Harvesting proving the company's negligence. Machine Co., 12 Tex. Civ. App. 446, 34 S. W. Cent. Dig. $$ 1261, 1262, 1283, 1285–1294;

[Ed. Note.-For other cases, see Carriers, 1055, and cases there cited.

Dec. Dig. § 316.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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Appeal from District Court, Johnson Coun- , said steps from near the top thereof to the ty; 0. L. Lockett, Judge.

lower part of said steps, and the stool placed Action by L. C. Davis and wife against the beneath the lower step and on the ground, Gulf, Colorado & Santa Fé Railway Compa- and as a direct and proximate result thereof ny. From a judgment for plaintiffs, defend- severely and permanently injured her.” And ant appeals. Reversed and rendered. thus charges the issue of negligence upon See, also, 139 S. W. 674.

which the case was submitted : "That the de

fendant was guilty of negligence in allowing Terry, Cavin & Mills, of Galveston, Brown and permitting said nails, screws, bolts, or & Lockett, of Cleburne, and Lee & Lomax, of other projections to thus stand up and proFt. Worth, for appellant. J. B. Haynes, W. trude above the surface of said platform or Poindexter, and Walker & Baker, all of Cle- other part of said coach near the door and burne, for appellees.

platform of said coach, and was guilty of

negligence in permitting the same to remain CONNER, C. J. This appeal is from a in such condition." Judgment in appellees' favor for the sum of Mrs. Davis testified that when the station $12,500 as damages for personal injuries al- of Alvarado was called she got up and startleged to have been received by Mrs. Davis ed out, and got to the edge of the platform while she was a passenger on one of appel- to make her first step, when her dress caught lant's trains on the 16th day of January, behind on something and jerked her feet 1909. A number of assignments of error re- from under her and threw her forward to lating to the rulings of the court on the in- the ground, from which she suffered injuries struction and rejection of evidence and to as related in her testimony. She said: “I special charges given and refused have been do not know what my dress caught on; it presented, but, in the view that we have tak- caught on the platform somewhere. The en of the case, it will not be necessary for us skirt just jerked me and jerked my feet out to determine them. The vital question, as from under me.” She further testified that we conclude, is whether there is any evidence the obstruction tore her dress, which was exin support of the issue of negligence upon hibited before the jury, and which was thus which the case was submitted.

described by her: "No one has worn this Several grounds of negligence were al. | dress since that night. Prior to the time I leged. All 'but one, however, were excluded fell from the train there was no holes in this from the consideration of the jury by the dress. It is torn now crossways at the botcourt's charge, and of this no complaint is tom of the placket and towards the left side. made, so that in our statement of the case This tear is about eight inches to the left we will confine ourselves to the issue of neg. side of the placket; the tear extending from ligence submitted. It was alleged, in sub- the bottom of the placket to the left. The stance, that on the evening of the day stated hole at the bottom of the skirt is just over Mrs. L. C. Davis took passage at Cleburne, the hem and is about six inches in length Tex., upon one of appellant's passenger trains and extends to the hem. Then it is torn for the purpose of being transported to her slightly at the left side and not quite so home in Alvarado. Mrs. Davis without dis-much to the right. It is a hole your fist pute paid the customary railroad fare and could slip through easily.” became a passenger. She thus alleges the Other than the evidence of appellee quoted, manner of her injury: “And when said pas- there is none that corroborates her theory of senger train reached the defendant's passen- the fall, save the testimony of Silas Bankger station in Alvarado, Johnson county, ston, who testified: That he was present Tex., and had stopped at said station for the and within some eight or ten feet of Mrs. purpose of allowing passengers to disembark Davis when she fell. That “when I first from said train, and from the coach in saw Mrs. Davis she was standing out on the which she was riding, the plaintiff in the ex- platform between the coaches and started ercise of due care arose from her seat in said down; she took one step and started to take coach and passed out of the usual and regu- another one and fell. Her dress was pulled lar door to said coach onto the platform behind, and she fell.

Her dress thereof, and while she was attempting to swung right backwards from where she was pass down the steps of said coach from the getting off. I just happened to be noticing platform, the lower and back portion of her her dress. It drew in front of her and about dress and skirts caught upon one or more her shoe tops.” The brakeman, however, at nails, screws, bolts, or other projection negli- the foot of the steps, a bus driver standing gently allowed and permitted by the defend- near, and some four or five other persons, ant to protrude above the surface of said also near by, either passengers or waiting on platform, or to be attached to said coach, appellee to take passage, all deny seeing a and the back part of her dress and skirts be- screw, nail, or other thing upon the plating thus caught and fastened by said pro- form on which appellee's dress could have jection, nails, screws, or bolts, caused the caught. These witnesses all believed thémfront and lower part of her dress and skirts selves in position in which to have seen had to pull and jerk her feet from under her, there been anything of the kind. One or and caused her to fall and to be thrown down | more of them testified specifically that they

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thought they would have seen it had there, the descending or ascending passengers and been a projection, and all also denied that other observers were able to observe it before they observed or heard any tearing of appel- or after the fall. None of them testified that lee's dress, or any drawing of the dress from he or she saw, tripped over, had clothing behind immediately preceding the fall; one caught on, or otherwise discovered a protrudwitness giving it as her opinion that appellee ing screw, or other thing upon which a dress either fell in a fit or voluntarily. All other could have caught. On the submission it was observers save one thought her fall was suggested in argument that appellee's dress with design.

may have extracted the screw, thus accountAdopting, however, in deference to the ver- ing for the failure of the witnesses to see it; dict of the jury, appellee's own account of but this is a mere conjecture. No loose her fall, there yet remains the vital issue of screw was found on the ground or other place whether appellant or its servants were guilty afterwards, nor does any witness indicate of negligence in permitting the platform or that there was a vacant hole in the platform. steps of the car in question to be in the con- In brief, as stated, there is nothing in the dition alleged. Other than the mere fact that evidence, which we have carefully considered, appellee's dress caught on “something,” there upon which to found the conclusion that is nothing in the evidence from which to appellant was guilty of negligence in the redraw an inference of negligence. The evi-spect alleged by appellee, except the isolated dence shows that appellant's car inspectors fact that appellee's dress caught upon someat Cleburne inspected the car during the day thing and that she was thereby caused to preceding the occurrence; that the car was fall. also inspected by the brakemen on the way to [1] Numerous cases might be cited where Dallas shortly afterwards, and yet later after an inference of negligence has been held to the arrival of the car at Dallas, and yet again be justified from the very nature of the defect with particularity on the day after at Cle-causing an injury, but this principle—that of burne, when appellant's inspectors at that res ipsa loquitur-has no proper application place were informed that appellee claimed to here. The defect, the cause of the fall in the have been thrown by catching her dress on a instance before us, is not shown with any screw or other thing on the platform. On degree of certainty. That there was a loose none of these occasions was a defect or ob- screw or other projection on the platform of struction found as shown in the evidence. the car in question is a mere inference from It is not contended that such inspectors were the fact that appellee's dress caught, and to incompetent and that appellant was guilty of proceed yet further in the course of reasonnegligence in their employment or retention; ing, and infer negligence in permitting the nor is it contended that there is any evidence, screw or projection to be there, seems to be save the mere fact that appellee's dress adding presumption upon presumption, which caught, that indicates carelessness on the the law never permits. part of any of appellant's inspectors, or of an [2] One of the passenger witnesses, Baxter insufficient inspection; nor is it contended Walton, testified that he was in the middle that the inspections were not with sufficient of the platform and about three feet behind frequency, nor that the car was old and appellee and in position to have seen her worn, or defective in construction, and that dress if it caught anything as she got off; appellant was guilty of negligence in this re- there being nothing to obstruct his view. He spect. Then in what respect was appellant not only denied seeing any obstruction, but negligent? The allegation, as will be seen further testified that "another boy came out from the quotation made, is that appellant there where I was after I had gotten out was guilty of negligence in "permitting said there, and stood kinder behind me on the nail, screws, bolts, or other projection to same platform that I was on. I don't know thus stand up and protrude above the surface when he came out there, but he was standing of the platform or other part of said coach there after she fell. I noticed him before near the door, and was guilty of negligence any other passengers came along. I know he in permitting the same to remain in such did not come up the steps and get on the condition.” But what proves it? As seen, train after the lady fell." Baxter Walton inspection was made before the car was denied that he, himself, stepped on appellee's started on its way to Alvarado, and no screw, dress, but, so far as we can tell from the recbolt, or other projection was apparent. The ord "the boy" was not called as a witness. evidence shows that screws in the platform It is possible that either the boy or some of like cars sometimes work out, but nothing other person not observed inadvertently stepis here shown when, if at all, the raised ped upon appellee's dress, and thus tore it screw or other projection first protruded and threw her. This, of course, is but a mere above the platform. For aught that appears conjecture that will not be indulged by the in the evidence, it may have been but a mo- law, but is given merely as illustrating that ment before appellee appeared on the plat- appellee's testimony accounting for her fall form. It cannot be reasonably said that the is not inconsistent with causes of her fall brakeman or other employés were guilty of other than that of a projecting screw. And negligence in failing to discover the elevatel the rule undoubtedly is that, where the tesscrew when neither the appellee nor any of timony shows that an accident is as reason

TION.

TION.

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ably attributable to a nonactionable cause as 5. PARTNERSHIP ($ 20*)—EXISTENCE OF RELA-
to one that is, the law will not uphold a con-
clusion in the nature of a mere guess in favor to would furnish the money to purchase horses

An agreement that one of the parties thereof the latter.

would not of itself constitute a partnership be[3] While it was appellant's duty to exer-tween the parties. cise a very high degree of care to furnish and (Ed. Note.-For other cases, see Partnership, maintain suitable cars and platforms upon Cent. Dig. $$ 6, 7; Dec. Dig.'8 20.*] which passengers could move with safety, it 6. PARTNERSHIP (8 218*)-INSTRUCTIONS-DE

FINING TERMS. was not an insurer in this respect, and the

A requested instruction submitting the isburden of proof rested on appellee to show sue of partnership was defective for not statsuch a state of circumstances as affords aing to the jury what would constitute a partner

ship. reasonable conclusion of negligence as alleged. It is not sufficient for a plaintiff to show Cent. Dig. $$ 49, 426-428; Dec. Dig. $ 218.* ]

[Ed. Note.-For other cases, see Partnership, that the defendant may have been guilty of

7. PARTNERSHIP (8 218*)-EXISTENCE OF RELAnegligence; the evidence must point out that he was.

An instruction, that if the purchase of horsWe conclude that in this appellee has es by plaintiff was under an agreement by which wholly failed, and that such failure entitles defendant was to have a third interest therein appellant to judgment. Texas & P. Coal Co. without fixing a time for payment, unless he

upon paying to plaintiff a third of the price v. Kowsikowsiki, 118 S. W. 829, s. c. 103 Tex. paid such third within a reasonable time he 173, 125 S. W. 3; St. Louis, S. F. & T. Ry. Co. would not be a partner in the stock, was not er

roneous on the ground that it authorized the V. Cason, 129 S. W. 397. Such being our finding that failure to pay defendant's part of conclusion, and it further appearing that this the price would dissolve the partnership, though case had been twice tried and fully developed, a partnership had been consummated. we think in the interest of all parties that [Ed. Note.-For other cases, see Partnership, the litigation should be brought to an end. Cent. Dig. $$ 49, 426-428; Dec. Dig. $ 218.j It is, accordingly, ordered that the judgment

Appeal from Knox County Court; J. H. be reversed and here rendered for appellant. Milam, Judge. Reversed and rendered for appellant.

Action by G. H. Shawver and another
against C. H. Coody. From a judgment for
plaintiffs, defendant appeals. Affirmed.

Jas. A. Stephens, of Benjamin, for appel-
COODY v. SHAWVER et al.

lant. D. J. Brookreson, of Benjamin, and
(Court of Civil Appeals of Texas. Ft. Worth. Robert Cole, of Crowell, for appellees.
Nov. 8, 1913. Rehearing Denied
Dec. 13, 1913.)

DUNKLIN, J. G. H. and J. A. Shawver 1. PLEADING (8 301*)_VERIFICATION-VERIFI- instituted this suit against Henry Coody to

recover possession of three mules and one The fact that a pleading was verified by a horse, or, in the alternative, the value thereparty before one of his attorneys in the case of, also for $250, the value of two mules alwas not ground for sustaining a special excep-leged to have been converted by the defendtion thereto.

(Ed. Note.-For other cases, see Pleading, ant; title to all of said stock being claimed Cent. Dig. $$ 314, 318, 892–897, 904-906; Dec. by the plaintiffs. Judgment was recovered Dig. 8 301.*]

by plaintiffs, and the defendant has ap2. PARTNERSHIP ($ 213*)-ALLEGATIONS-RE- pealed.

The animals in controversy originally beThe mere allegation in the petition of joint ownership of the mules sought to be recovered longed to a herd of 37 head of horses and was not equivalent to an allegation of partner- mules purchased at public sale; plaintiff G. ship as to the mules.

H. Shawver furnishing the purchase money [Ed. Note. For other cases, see Partnership, therefor, and defendant Coody bidding in Cent. Dig. $8 408, 409; Dec. Dig. 213.*]

the stock and taking and holding possession 3. REPLEVIN (§ 8*)-ISSUES.

thereof for quite a long period of time. ACIn an action by two persons to recover cording to the testimony of plaintiff, G. H. mules, or their value, which were claimed to have been converted by defendant, the questions Shawver, he agreed with Coody prior to the whether plaintiffs were partners, and whether purchase that he (Shawver) would furnish one plaintiff had paid the other for his interest the purchase money, and after the purchase therein, were immaterial.

Coody and plaintiff J. A. Shawver might (Ed. Note.-For other cases, see Replevin, Cent. Dig. 88 45-68; Dec. Dig. $ 8.*]

each become the owner of a one-third inter

est in the stock upon payment of one-third 4. PARTNERSHIP ($ 218*)-EXISTENCE OF RELA- of the purchase price, but that Coody had TION-SUBMISSION OF ISSUE.

In an action to recover possession of mules never paid, or offered to pay, such consideraclaimed to have been converted by defendant or tion, and had refused to turn over to the their value, whether defendant was the partner plaintiffs the stock in controversy.

Accordof plaintiff need not be submitted; the evi- ing to Coody's testimony, prior to the auction dence not tending to show a partnership.

[Ed. Note.- For other cases, see Partnership. sale noted, plaintiff G. H. Shawver had Cent. Dig. $$ 49, 426-428; Dec. Dig. § 218. *j agreed unconditionally that, if he (Coody) For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexen

CATION BY ATTORNEY.

LATION.

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would bid in the herd, G. H. Shawver would defendant's favor. In order to establish the furnish the purchase money, and that the alleged partnership between the plaintiffs two plaintiffs and Coody would become part and the defendant, it would have been necesners and own the stock in equal shares, and sary for the defendant to show, not only that that J. A. Shawver and Coody should each he acquired an interest in the stock, but also owe to G. H. Shawver one-third of the pur- further facts necessary to constitute a partchase price of the stock. The difference in nership. The charge given by the court was these two versions of the terms of the agree therefore more favorable to the defendant ment was the only controverted issue upon than the two requested instructions last the trial.

noted. [1] The allegation contained in Coody's an [5,6] Furthermore, one of the requested swer of a partnership formed between the instructions was erroneous, in that it contwo plaintiffs and himself for the ownership tained the proposition that, if it was agreed and management of the herd was specially between the parties that G. H. Shawver denied by plaintiffs in their supplemental would furnish the money to purchase the petition, and this pleading was verified by horses, that agreement alone would constiplaintiffs before one of their attorneys who tute a partnership between them, and the acted as notary public in taking the affidavit. other requested instruction submitted the isDefendant's special exception to this plead- sue of partnership with no guide to the jury ing on the ground that the attorney was not for the purpose of determining what would a proper official to take the affidavit was constitute a partnership. Hence the assigncorrectlyoverruled. Ryburn v. Moore, 72 ments complaining of the refusal of the reTex. 85, 10 S. W. 393; Kosminsky v. Ray- quested instructions are overruled. mond, 20 Tex. Civ. App. 702, 51 S. W. 51. [7] Complaint is also made of an Instruc

[2, 3] G. H. Shawver, after testifying that tion given by the court, in effect, that if the his brother, J. A. Shawver, owned an interest purchase of the stock was made under an in the horses in question and that defendant agreement whereby defendant was to have did not own any interest in them, was asked a one-third interest in the stock provided he by defendant's counsel if J. A. Shawver had would pay to G. H. Shawver one-third of ever paid to witness any part of the pur- the purchase price and no time fixed for such chase money for the herd. Plaintiffs object- payment, the defendant would have a reaed to this question on the ground that de sonable time to pay the same, and, unless he fendant had not by answer denied under paid the same within a reasonable time, he oath allegations in plaintiffs' petition that would not be a partner with the plaintiffs in the two plaintiffs owned the horses as part the stock. The criticism of the instruction

This objection was sustained, and this is that by the instruction the jury were auruling is made the basis of the second assign- thorized to find that, although a partnership ment of error. While the petition claimed a had been in all things consummated, the de joint ownership of the horses in plaintiffs, fendant's failure to pay his portion of the there was no allegation of a partnership be purchase price would dissolve the partner. tween them, nor of any fact that would con- ship. By the very terms of the instruction stitute a partnership. Evidently the allega- the acquisition of an interest in the property tion of joint ownership was construed by the by the defendant was made to depend upon court as equivalent to an allegation of part- the payment by the defendant of one-third nership in the plaintiffs in such ownership, of the purchase price. In other words, the which was incorrect. However, the issue of agreement submitted was merely one giving whether or not the plaintiffs were partners the defendant an option to become the owner in the ownership of the horses was imma- of an undivided one-third interest in the terial, and it was also immaterial whether or stock, and, according to the defendant's own not J. A. Shawver had paid his brother for testimony, he never paid nor offered to pay his interest in the horses. Accordingly, the any part of the purchase price. For this second assignment of error is overruled. reason there is no merit in the assignment.

[4] Appellant complains of the refusal of Another paragraph of the court's charge is two special instructions requested by him up-criticised as being upon the weight of the on the issue of partnership between himself evidence in assuming that the stock in quesand the plaintiffs. Whether or not the de- tion belonged to the plaintiffs; but, when fendant was a partner of plaintiffs was an considered in connection with other instrucimmaterial issue. His contention, that tions contained in the charge clearly submitplaintiff G. H. Shawver agreed uncondition- ting that issue as a disputed issue, it is alally that as soon as the herd was purchased together improbable that the jury interpreted defendant should become the owner of a the charge in the manner suggested in the one-third interest therein and should there- assignment. after pay one-third of the purchase price, There is no merit in appellant's seventh was submitted to the jury in the court's assignment complaining of an instruction charge, together with an instruction that, if permitting a finding in plaintiffs' favor of that contention was sustained by the evi- compensation for the use of certain animals dence, a verdict should be returned in the claimed by the plaintiffs and used by the de

ners.

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