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chair in the car so that he would be more the second part is released from the obligation likely to hear his station called, and that the assumed by him to pay the parties of the first conductor did not take up his ticket until

part any sum or sums of money for such nights

as the said Ozark Opera House or Skydome after the train had passed Clarendon, was Airdome is opened. negative in character, and from it the jury “2. That during any week that the opera could not have legally inferred that the sta- house or Skydome Airdome is opened three tion was not called by the conductor before the party of the second part will be released

nights or more for picture shows or vaudeville, the train arrived at Clarendon. The burden from the payment of any sum of money to parbeing on the plaintiff, he could not discharge ties of the first part for that particular week. it by negative testimony of this character.

"The party of the second part, Frank Barr,

covenants and agrees that for every week night Moreover, according to the testimony of that the Ozark Opera House and Skydome Airthe conductor, he called the station aloud in dome is kept closed, except as otherwise prothe car in which the plaintiff was riding be- vided herein, he will pay to the parties of the fore the train reached Clarendon. The train first part the sum of five ($5) dollars per night;

said sum or sums of money to be paid weekly stopped at Clarendon long enough for the at the end of each week to parties of the first passengers in the coaches to leave them, and part at such time and place as may be agreed several passengers on the train debarked upon by the parties to this contract. from it. His testimony was reasonable and

“It is further agreed by the parties hereto

that this contract shall be in full force and consistent in itself. The negative testimony effect from Monday, February 12, 1917, and of the plaintiff did not tend in any wise to to continue in force until and including the contradict it.

28th day of April, 1917.

“The parties to this contract further mutualTherefore the judgment will be affirmed.

ly agree and covenant that in the event that any of them should in any way breach this con

tract or fail to perform the conditions hereof, (134 Ark, 207)

then such party so violating or breaching the BARR v. VAUGHAN et al. (No. 349.) provisions thereof shall owe and be indebted to

the other party in the sum of one hundred (Supreme Court of Arkansas. May 6, 1918.) ($100) dollars to be collected as liquidated dam

ages.

J. C. Vaughan, DAMAGES 85-LIQUIDATED DAMAGES.

“Max Hulse, Under an agreement to pay plaintiffs $5 per

“Parties of the First Part. night to keep their picture show closed until

"Frank Barr, a certain date, which provided $100 liquidated

"Party of the Second Part. damages for a breach, where plaintiffs per

“Witness: A. G. Flowers." formed their contract in full, they were entitled to $5 for each night, and were not limited to $100, but neither were they entitled to the $100 Alict in the testimony, and it may be sum

There appears to be no substantial conin addition to an amount exceeding that sum. Appeal from Circuit Court, Washington were not the owners of the opera house or

marized as follows: Vaughan and Hulse County; J. S. Maples, Judge.

Skydome Airdome, but had a lease thereon Action by J. C. Vaughan and Max Hulse

which expired on the 28th day of April, against Frank Barr. Judgment for plain

and they were required under their lease tiffs, and defendant appeals. Modified and

contract to pay $10 for each day's use of the affirmed.

leased property. The contract set out is John Mayes and Walker & Walker, all of dated the 7th day of February, and Barr Fayetteville, for appellant. H. L. Pearson, admits that notwithstanding its execution of Fayetteville, for appellees.

on that day, it was not to become effective as

a contract, unless and until Vaughan and SMITH, J. The parties to this litigation Hulse secured their release from their conentered into the following contract:

tract of lease with the management of the “This contract entered into this 7th day of opera house company. This release was obFebruary, 1917, by and between J. C. Vaughan tained on the 9th day of February, and thereand Max Hulse, of Fayetteville, Arkansas, parties of the first part, and Frank Barr, of Fay after Vaughan and Hulse discontinued all etteville, Arkansas, party of the second part, use of either the opera house or the airdome. witnesseth:

It is also undisputed that Barr made an ad"1. That for and in consideration of the

“ sums of money hereinafter provided to be paid ditional contract with the management of by the party of the second part to parties of the opera house and airdome by which it, the first part, J. C. Vaughan and Max Hulse, too, agreed to put on no shows until after parties of the first part mutually agree and the 28th day of April, and there was no viocovenant with the party of the second part that lation of that contract, so that Barr had no they will close down their picture show now being operated in the Ozark Theater and keep competition in the show business from either same closed so long as the party of the second Vaughan and Hulse or from the opera house part performs the conditions of this contract; management during the period of time covthat they will not be interested in, nor in any ered by the contract set out above. way connected with any picture, show or any other entertainment that is given in the Ozark Having reached the conclusion that there Opera House or Skydome Airdome during the are no questions of fact for the jury, it is life of this contract; that on the nights that necessary only to construe this contract as the Ozark Theater or Skydome Airdome is opened for entertainments of any character applied to the facts which we have stated. during the life of this contract, that party of There was a verdict and judgment in favor

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Vaughan and Hulse for $430, which in- suddenly bumping engine against string of cars, cludes $5 for each day during which the con- throwing passenger against a seat, and the contract continued, exclusive of Sundays, and tributory negligence of the passenger.

.

4. EVIDENCE @ 571(1)-EXPERT TESTIMONYthe sum of $100 named in the contract.

PHYSICIANS. Appellant earnestly insists that the par- Where physician attending injured passenties by their agreement have stipulated for ger testified to the nature of the injuries, his liquidated damages, and have named $100 as because he could not give an opinion as to the

whole testimony could not be excluded merely measuring that damage; and the correctness

permanency of the injury. of this contention presents the real question 5. APPEAL AND ERROR Om499 (1)-FORM OF in the case. We think it apparent that the JUDGMENT-RECORD-EXCEPTIONS. contract contemplated that Vaughan and In the absence of record showing that obHulse might keep their part of the contract, jection was made to the form of the judgment,

error assigned thereto on appeal will not be conwhile the management of the opera house

sidered. and airdome company might give shows either at the opera house or the airdome, and Appeal from

from Circuit Court, Columbia against this contingency it was provided that County; Chas. W. Smith, Judge. if either was opened three nights or more Action by J. E. Mullins against Geo. W. in any week, nothing should be paid Vaughan Hunter, as receiver of the Louisiana & Northand Hulse for that week. In other words,

In other words, western Railroad Company and another. Barr was attempting for the time covered by Judgment for plaintiff, and defendants apthe contract to free himself from competition, peal. Affirmed. and was to pay the stipulated sum only dur

Stevens & Stevens, of Magnolia, for appeling the period of time when he had this im

lants. munity. When the contract is read as a whole, we

MCCULLOCH, C. J. This is an action do not think that this last clause was intend-instituted by the plaintiff, Mullins, to recover ed to deprive Vaughan and Hulse of the damages for injuries received while a passum which would be due them when they senger on a railroad train. The action is had finally and fully performed their part against the receiver of the Louisiana & of the contract. In that event there could Northwestern Railroad, who was at the time be no necessity for any stipulation in re- of plaintiff's injury operating the road under gard to liquidated damages, because the con- the orders of the court which appointed him. tract plainly specified that Vaughan and The railroad extends from McNeal, Ark., to Hulse should be paid $5 for each night dur

Natchitoches, La Plaintiff took passage at ing which the contract was performed, and Homer, La., on a mixed train at night en

. no other damage could accrue. It was not

route to his home at Magnolia, Ark., and his proper, therefore, to allow Vaughan and injuries were received at Haynesville, La., Hulse the $5 for each night and the $100

an intervening station. The train was in addition, and error was committed in en composed of a long string of freight cars, and tering up judgment therefor. The judgment the passenger coach in which plaintiff and of the court below will therefore be modified, the other passengers were riding was attachand it will be reduced to the sum of $330, ed to the end of the train.

$

ed to the end of the train. When the train and for that sum affirmed.

reached Haynesville the engine was detached, and went forward about a quarter

of a mile to do some switching at a stave (136 Ark. 520) HUNTER et al. v. MULLINS. (No. 339.)

factory. After switching around the stave

factory about a half hour the engine was (Supreme Court of Arkansas. May 6, 1918.)

May 6, 1918.) moved back to the train, and in doing so 1. DAMAGES On 130(1)-PERSONAL INJURY- it was thrown back against the train with EXCESSIVE DAMAGES.

such unusual force that the plaintiff was Verdict of $666 in favor of passenger thrown

At the to the floor of a car, confined to his room for thrown down and severely injured. 30 days, suffering great pain and inconvenience time the engine came back against the train for 8 months, whose physician testified that it the plaintiff had arisen from his seat, was impossible to say whether the injuries and

and was walking down the aisle toward would be permanent or not, but said that there

the water cooler at the end of the might be complete recovery within 5 or 6

train. months, was not excessive.

He testified that the engine had been 2. APPEAL AND ERROR C 928(1)-REVIEW-away from the train about 30 minutes, and PRESUMPTION-INSTRUCTIONS.

that he did not hear any sound to indicate Ruling of the court on instructions given or the return of the engine until it struck the refused cannot be reviewed unless the instructions are abstracted, since in the absence of train at the front end of the string of cars such abstract the court must assume that the with great violence, sufficient to throw him issues were correctly submitted to the jury.

down. He testified that he was thrown 3. CARRIERS C320(19), 347(6)–PASSENGERS-against the end of a seat, his knee striking

INJURIES TO PASSENGERS - QUESTIONS FOR against the frame of the seat.
JURY.
Evidence held to warrant submission to

[1] The evidence tended to show that the jury of the issues of the carrier's negligence in plaintiff was confined to his room for 30 days, and suffered great pain and inconvenience mony of the physician, who was introduced as up to the time of the trial, about 8 months a witness, because the witness was unable after the injury occurred. The physician who to state whether or not the injury was pertreated plaintiff's injuries testified concerning manent. We must assume, in the absence the same, and stated that there was an in- of any showing to the contrary, that the jury to the ligaments surrounding the knee-court did not submit to the jury the question cap, but that it was uncertain when there of the permanency of plaintiff's injury, but would be a complete cure, or whether the in- there was testimony sufficient to show that jury would be permanent. The physician the injury would continue for a time in the declined to give an opinion whether the in- future. The testimony of the physician tendjury was temporary or permanent, but said ed to show such an injury, and other imthat there might be complete recovery in 5 portant testimony was given by that witness or 6 months from the date of the trial, or concerning the character and extent of the inthat there might not be a complete recovery jury. It would not have been proper to exat all. The trial resulted in a verdict include the whole of the testimony of the witplaintiff's favor, and the jury assessed the ness merely because he was unable to give an damages in the sum of $666, which was not, opinion as to the extent or permanency of the under the evidence, excessive.

injury. [2, 3] The instructions given and refused [5] It is also contended that the court errare not abstracted; therefore the rulings of ed in declaring the judgment in plaintiff's the court thereon are not properly before us favor a lien on the roadbed of the company for review. We must assume that the issues in this state, the cause of action being one were correctly submitted to the jury. The which arose in another state. The record evidence was sufficient to warrant a submis- does not show that an objection was made sion to the jury of the issues concerning neg. in any form to that feature of the judgment. ligence of the defendant and contributory Therefore the record does not call for a negligence of the plaintiff.

review of the ruling of the court on that [4] It is contended that the court erred in subject. refusing to exclude the whole of the testi- Judgment affirmed.

covery could be had: First, because the petiREASONER v. GULF, C. & S. F. RY. Co. tion, having admitted the execution by plain(No. 2514.)

tiff in error of a release of his claim for (Supreme Court of Texas. May 22, 1918.)

damages, averred no facts sufficient to avoid 1. RELEASE Cw52—INADEQUACY OF CONSIDER- of the petition, seeking to show causes of

the release; and, second, because allegations ATION-PLEADING.

In an action by servant for injuries, aver- action for damages arising from breach of a ments that release was procured by defendant contract to continue plaintiff in error in the and surgeon that plaintiff was not seriously in- employment of the railway company and to jured and would be well in two months, that furnish him a satisfactory service certificate, the representations were made by such claim destroyed, through inconsistency and repugagent and surgeon as agent of defendant duly nancy, all the allegations of permanent in

, that . resentations were made for the purpose of induc-jury to plaintiff in error, without, which he ing plaintiff to execute the release, and that did not show any cause of action. The Court plaintiff believed the representations and was of Civil Appeals sustained the latter contenthereby induced to sign and deliver the release, tion. when in fact plaintiff was then suffering from permanent injuries from which he would contin

[1] It was averred in the petition that ue to suffer, were sufficient, as against general the release was procured by defendant in demurrer, to avoid release on ground of false error by means of representations of its representations. 2. PLEADING Om 21 - CONFLICTING ALLEGA

claim agent and surgeon that plaintiff in TIONS-INJURIES TO SERVANT-PETITION.

error was not seriously injured and would Petition, which, in addition to claiming dam- be well in two months, and that the repreages for injuries alleged to be permanent and sentations were made by such claim agent wholly disabling plaintiff servant sought dam- and surgeon as agents of defendant in error, ages for breach of contract for plaintiff's continued employment as fireman, did not present duly authorized to secure the release; and inconsistencies and repugnancies fatal to any it was also averred that the representations right of recovery for injuries, since the averment were made for the purpose of inducing plainthat plaintiff had been wholly disabled physical- tiff in error to execute the release, and that ly, and was unable to discharge the duties of any employment, negatives cause of action, attempt- plaintiff in error believed the representaed to be stated for breach of contract for con- tions, and was thereby induced to sign and tinued employment.

deliver the release, when in fact plaintiff in 3. APPEAL_AND ERROR Ow1040(3)–HARMLESS error was then suffering from permanent ERROR-DEMURRER-REVERSAL.

Where general demurrer, as well as special injuries to brain and spine, besides other inexceptions, were sustained to plaintiff's petition juries, from which he would continue to sufficient as against general demurrer, judgment suffer all his life. These averments were will be reversed on plaintiff's appeal, though he failed to complain of the sustaining of excep- sufficient, as against the general demurrer, tions.

to avoid the release. H. & T. C. R. Co. v. Error to Court of Civil Appeals of Second Brown, 69 S. W. 652; H. & T. C. R. Co. v. Supreme Judicial District.

Bright, 156 S. W. 310. Action by W. H. Reasoner against the

[2] In our opinion, the petition does not Gulf, Colorado & Santa Fé Railway Com- present the inconsistencies and repugnancies pany. Judgment for defendant, dismissing which were held fatal to any right of reaction, was affirmed by Court of Civil Ap-covery thereon. It is true that, in addition peals (152 S. W. 213), and plaintiff brings to suing for damages claimed for injuries alerror. Reversed and remanded.

leged to be permanent and incurable and Odell & Johnson and S. C. Padelford, all arising from the negligence of the railway of Cleburne, for plaintiff in error. Terry, company, the plaintiff also set up a contract

with the company, for his continued employCavin & Mills, of Galveston, Lee & Lomax, of Ft. Worth, and Brown & Lockett, of Cle- ment as a locomotive fireman and for a cerFt. Worth, and Brown & Lockett, of Cle- tain kind of service certificate, and sought to burne, for defendant in error.

recover damages for breach of such contract. GREENWOOD, J. The single question on No matter how necessary it may have been this writ of error is whether a general de- for plaintiff in error to have alleged his abilmurrer was properly sustained to the amend ity to perform the work of a fireman or to ed original petition, whereby plaintiff in er- have done some other kind of railroad work, ror sought to recover damages of defendant in order to have stated any cause of action in error.

for damages for breach of contract, it canThe petition contained allegations which not be held that his petition contained such were sufficient to show that plaintiff in er- allegations in the face of its express averror had been damaged in the sum of $7,500 ments to the contrary. The presence of such from personal injuries sustained by him, express averments negatives the causes of while in the employment of defendant in er- action, attempted to be stated for damages ror, as the proximate result of its negligence. for refusal to continue to employ plaintiff in It is contended for defendant in error that, error or to give him a service certificate on admitting these allegations to be true, no re- which to seek other railroad employment.

The defendant in error properly availed it-tions is no reason for refusing to reverse the self of these express allegations when it had judgment, if upon the whole a good cause of ac- . the trial court to sustain a special excep- fects in the form of stating it.”

tion is shown, even though there may be detion to all that portion of the petition setting up plaintiff in error's wrongful dis- tions, in passing on a general demurrer,

To eliminate the merely defective allegacharge and his inability to secure employ would be, in effect, for the court to ignore, ment with any railway company by reason of the character of his service certificate as to such allegations, its undoubted duty to “because it appears from the averments of consider them as though properly pleaded. the petition, if there is any truth whatsoever The allegations of the petition in this case, in the matters alleged, that ever since his given every reasonable intendment in their claimed injury, plaintiff has been wholly dis- favor, stated a cause of action in behalf of abled physically and incapable of performing plaintiff in error, and that is decisive of his any labor, and was a physical wreck, and right to have the general demurrer overrultherefore unable to discharge the duties of ed. Warner v. Bailey, 7 Tex. 519; Erie Tele'any employment.” In the face of contradic- graph Co. v. Grimes, 32 Tex. 94, 17 S. w. tory facts, plainly stated, the law neither 831; Blum v. Kusenberger, 158 s. W. 780. implied allegations into the petition to

The judgments of the district court and strengthen it against the special exceptions, the Court of Civil Appeals are reversed, and nor to weaken it against the general demur- | the cause is remanded to the district court. rer. The allegations of the petition were therefore in no true sense inconsistent or repugnant.

[3] It is insisted that though the general HESS & SKINNER ENGINEERING CO. v. demurrer, standing alone, ought to have been

TURNEY et al. (No. 3047.) overruled, yet the judgment sustaining it

(Supreme Court of Texas. May 22, 1918.) should be affirmed, because no complaint is made by plaintiff in error of the action of 1. APPEAL AND ERROR Omw 722(1) — ASSIGN

MENTS OF ERROR-MOTION FOR NEW TRIALthe trial court in sustaining 11 special ex

“SHALL." ceptions to his petition.

Under Rev. St. 1911, art. 1612, as amended The question here presented is not an open by Acts 33d Leg. c. 136, providing that where a

motion for new trial has been filed the assignone in this state, this court having declared ments therein shall constitute the assignments in Bigham Bros. v. Port Arthur Channel & of error, and need not be repeated by the filing Dock Co., 100 Tex. 202, 97 S. W. 689. 13 L. of the assignments, where a case is tried before

the court without a jury, and appellant's moR. A. (N. S.) 656: “Counsel for defendant in error insists that, ment of error, he is entitled upon his appeal to

tion for new trial is insufficient as an assignalthough the court may have erred in sustaining have considered formal assignments thereafter the general demurrer, yet the judgment should filed and duly incorporated in the record, and not be reversed for that reason because some in form sufficient to challenge trial court's conof the special exceptions were properly sustained clusion of law and fact; an exception having and the plaintiffs did not amend their petition. been duly reserved to judgment overruling moThe correct rule of practice is thus stated by tion for new trial, and the word “shall” as Chief Justice Willie in the case of Everett v. used in the statute not being mandatory. Henry, 67 Texas, 405 [3 S. W. 566]: 'We think the petition showed a good cause of action and Phrases, First and Second Series, Shall.]

[Ed. Note. For other definitions, see Words against Henry, and that his general demurrer should not have been sustained. This renders it 2. APPEAL AND ERROR 265(1)–EXCEPTIONS unimportant whether the special exceptions of

--CONCLUSIONS OF LAW AND FACT. the same defendant should have been sustained An exception having been duly reserved to or overruled. If they were well taken, it would judgment overruling motion for new trial, it was not have served any good purpose to amend the unnecessary that exceptions be also taken to petition to meet the objections raised; for the conclusions of law and fact to secure their recourt, having held the petition bad on general view under due assignments of error. demurrer, would necessarily have dismissed it, 3. STATUTES 205—CONSTRUCTION-INTENT. though every special demurrer had been met and The intent of a law is the essence thereof its force destroyed by a proper amendment.' and is to be gained from the entire context. That learned Chief Justice stated the same 4. STATUTES O 227-CONSTRUCTION--"MAY" proposition even more tersely and forcibly in -“SHALL." these words in Porter v. Burkett, 65 Tex. 383:

The words "may" and "shall" are not infre'What does it avail a plaintiff to fortify his pe- quently used interchangeably, and

to be tition against a special exception, when the given that meaning which will best express the court. in effect, holds that if he does so it is legislative intent. still bad on general demurrer? There can be

[Ed. Note.-For other definitions, see Words no use in amending a petition in one particular, and Phrases, First and Second Series, May.) when, after amendment, it shows upon its face no cause of action.'"

5. APPEAL AND ERROR Omn 282 – CONDITION

PRECEDENT-MOTION FOR NEW TRIAL. In following the case of Bigham Bros. v.

The trial having been before the court withPort Arthur Channel '& Dock Co., it is said out a jury, appellant is entitled to appeal within Brown v. Davis, 178 S. W. 845:

out filing motion for new trial. "In his brief, appellant presents as error only 6. COURTS @mw 85(3)—RULES FOLLOWING LANthe action of the court in sustaining the general GUAGE OF STATUTE-CONSTRUCTION. demurrer. The fact that he does not complain

Where Supreme Court in preparing rule of the judgment sustaining the special excep- 101a (159 S. W. xi) adopted the language of a

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

203 S.W.-38

are

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