to some isolated fact or circumstance, and not to a theory of recovery fixed by allegation and proof. Railway v. Von Hoesen, 91 S. W. 604; Railway v. Murray, 99 S. W. 144. In the case of Connor v. Uvalde Bank, 156 S. W. 1092, the rule on the subject, as laid down by the courts of Missouri, is copied as follows:

the jury. Did not the jury find that the al- of the plaintiff. The decisions cited refer legations and evidence of appellee were false and that the testimony of Black should be credited? Is the court invading the sacred province of the jury in holding that appellee is bound by his admissions in both allegation and proof? That is the attitude in which appellee is placed by his intemperate motion for rehearing, in which the court is informed that it "arbitrarily set aside the findings of the jury on this very issue and substituted its own conclusions of fact for the conclusions found by the jury."

Appellate courts in Texas are required by law, and from education and inclination are disposed, to show great deference for verdicts of jury; but they are not inclined to uphold a verdict that is in the very face of the pleadings and evidence of a plaintiff himself, in response to his demand that his allegations and proof must be discarded and evidence of a man, alleged by him to be a swindler and defrauder, taken as true, and build a recovery thereupon. The facts, however, tend to show that appellee told the truth about the partnership between him and Black, and the only possible ground on which there is any conflict between him and Black is as to the exact time when the partnership was formed. Appellee by allegation and testimony made the partnership the chief inducement to the purchase of the land. It is not claimed in the motion for rehearing that appellee did not swear that the partnership was formed before the sale of the land was consummated, and was the chief inducement thereto; but Black, the man who misled and deceived appellee, is the sole reliance upon which the verdict is hinged. Not only this, but Black is represented as a plaintiff, although he came in as an intervener, and his allegations as to the partnership being formed after the contract was made are quoted and relied on, although each and every one of them were denied by appellee in a supplemental answer. The allegation, however, of Black, shows that a verbal agreement was made as to the partnership before the sale was perfected; his allegation being as to the written contract which was executed on May 27, 1911, just two weeks after appellant had sold the land to appellee. The written contract recites the existence of a verbal agreement of partnership in the land.

While appellee cites authority to show that the opposing party may by his evidence explain or even disprove the existence of a fact testified to by a plaintiff, and the jury might take the evidence of the defendant upon which to base a verdict for the plaintiff, he fails to cite any case that holds that the evidence of the defendant contrary to one of the main points relied upon in the petition for a recovery and supported by the deliberate careful testimony of the plaintiff can be taken in the face of such allegation and proof as a basis for a finding in favor

"If it is a mere construction of phrases or expressions used by the witness in detailing his favorable or unfavorable to his side of the case, testimony as to whether the statements are then there is no necessity, nor is it error, to refuse an instruction embodying the principle in the one before us. It is simply the province of the jury, guided by the general instruction as to the credibility of witnesses and the weight to be attached to their testimony, to determine the credit of such witness and the force and effect of his testimony. If a plaintiff or dewhich may be construed unfavorably to them, fendant testifying in a cause make statements it is the province of the jury to consider them; but, unless such statement amounts to an admission of a fact material to the issue, it is not the province of the court to assume that unfavorable statements have been made and instruct the jury on that subject."

[9] In this case, however, the trial court could with perfect propriety have instructed the jury that it had been admitted by appellee that he formed a partnership with the agent of appellant prior to the purchase of the land and that the formation of the partnership was the chief inducement to the purchase of the land. Appellee pleaded and proved the theory upon which he sought to recover, and he will not be permitted to recover on a theory made by the evidence of an intervener, who had conspired with him offered to sustain such a position, and none as against the principal. No case has been will be, because it is contrary to all rules of law and right applicable to the ques

tion.

There is not one word of testimony tending to show that Binder knew of the partnership between Black and appellee, but all of the testimony shows that he did not. Although it is so stated in the motion for rehearing, Black did not swear that he informed Binder about the partnership. What he said about informing Binder was before the partnership was mooted, and was in regard to an interest that Black had in the land being kept by him. In order to show that Binder knew about the transaction, evidence of Black, to the effect that at the very start of the negotiations appellee tried to get Black to defraud his principle and "stand in" with him, is cited with approval by appellee.

The defense pleaded in this case was not contemplated in the first answer, but was set up about four months after the suit had been filed, and in the third amended answer, upon which the cause was tried, there was no plea of failure of consideration, as is stated in the original opinion; but we find that a plea of failure of consideration was

ERROR-OVERRULING EXCEPTIONS.

filed as a second trial amendment on April [2. APPEAL AND ERROR 1170(3)—HARMLESS 14, 1917, about four days before the cause was submitted to the jury. The cause was submitted to the jury on the theory of damages arising from fraud and not on failure of consideration. The jury so understood it

and stated:

"We find that defendant Millikin is entitled to recover damages as an offset in the nature of a credit on said notes, and find as such damages the sum of $125,756.52, which is the difference between the amount for which the land and personal property sold, to wit, $300,000, and the market value of such land and personal property on May 25, 1911, etc."

tion concerning defendant's liability in the event Though allegations of the supplemental petithat plaintiff was at the time of his injury in the service of an independent contractor were the overruling of an exception was not reversible mere conclusions and not statements of facts,

error under rule 62a (149 S. W. x), providing that no judgment shall be reversed and a new trial ordered for errors at the trial unless the appellate court shall be of the opinion that the error was such a denial of appellant's rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, where the jury found upon sufficient evidence that plaintiff was in defendant's service. 3. TRIAL 350(6) SPECIAL ISSUES - ACTIONS FOR PERSONAL INJURIES.

However, the plea of failure of consideration was verified by affidavit and filed as a second trial amendment, and the state-ly ment made in our former opinion to the contrary is hereby corrected. This will not alter the disposition of the cause.

Where defendant introduced testimony tendfor it and for F., a special issue as to whething to prove that plaintiff worked intermittenter plaintiff at the time he was injured was engaged in doing any service for defendant was material to the contention insisted upon by defendant as material.

ACTIONS FOR PERSONAL INJURIES
ALREADY SUBMITTED.

ISSUES

defendant's employ when the injury occurred A special issue as to whether plaintiff was was properly submitted, and while the court might have submitted the issue in that form, or in the form requested, as to whether he was in submitted it in one form it was not error to rethe contractor's employ when injured, having fuse to submit it in the requested form. 5. TRIAL 350(1) SPECIAL ISSUES - QUESTIONS TO BE SUBMITTED.

The rule in cases submitted by a general charge that each group of facts pleaded and supported by testimony should be affirmatively submitted to the jury does not apply when the case is submitted upon special issues. 6. TRIAL 350(6)

Black wrote Binder on April 26th, just aft-4. TRIAL 350(6), 351(5)—SPECIAL ISSUES er the preliminary contract was closed, that appellee had taken all of the land when at that very time he had entered into the part-in nership and retained one-half the property and on the next day, April 27, 1911, he telegraphed appellee, at Tulsa, Okl., asking him to write a letter stating that appellee would sell Black a half interest in the land. It is contended that the testimony was an innocent scheme on the part of Black to get a bonus from some one, but the fact remains that one month after that one-half the land was contracted by appellee to Black. That contract recites the existence of the verbal agreement to convey one-half the land, and the evidence shows that the verbal agreement must have been made before appellee left San Antonio, and before the preliminary contract was signed, because just as soon as that contract was signed appellee left for Tulsa, and remained there until and after the contract of partnership with Black was signed. It is not claimed that the verbal contract was made by telephone, and consequently it could not have been made while Black was in San Antonio and appellee was in Tulsa. There is no escape from this conclusion.

-

SPECIAL ISSUES AcTIONS FOR PERSONAL INJURIES. A special issue as to whether plaintiff at the time he was injured was engaged in the discharge of his duties as defendant's employé was not objectionable as submitting a question of law.

7. TRIAL 350(6) SPECIAL ISSUES AcTIONS FOR PERSONAL INJURIES “QUESTION OF FACT."

A special issue as to whether a box car which plaintiff was boarding when a brake wheel gave way and permitted him to fall belonged to defendant at the time of the injury submitted a question of fact, and not one of law, within Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, providing that the special verdict must find the facts established by the evidence.

cate, while, in order to be subject to the objec- [er plaintiff was in defendant's employ when intion made, the sentence must be a compound jured, an issue as to who gave plaintiff instruesentence composed of two co-ordinate clauses. tions to do the work at which he was injured, 10. MASTER AND SERVANT 284(1) Ac- and other instructions requiring a finding of the TIONS FOR INJURIES-QUESTIONS FOR JURY. evidence by which the fact of employment was In a railway conductor's action for injuries, to be determined and not the fact of employa peremptory instruction requested by defendant ment itself, were properly refused.. was properly refused if there was any evidence 18. APPEAL AND ERROR 692(1)-RECORDthat plaintiff was an employé of defendant at MATTERS PRESENTED BY REVIEW. the time of his injury, and was at that time performing the duties of his employment, and that defendant's negligence proximately caused his injuries.

11. MASTER AND SERVANT 277-SUFFICIEN-
CY OF EVIDENCE-EXISTENCE OF RELATION.
In a railway conductor's action for injuries,
in which defendant claimed that plaintiff was
working for an independent construction con-
tractor, evidence held sufficient to sustain a find-
ing that he was defendant's employé and was
engaged in the performance of the duties re-
quired of him by defendant when injured.
12. APPEAL AND ERROR 1001(1)-REVIEW-
CONCLUSIVENESS OF VERDICT.

Though there was direct and circumstantial
testimony to prove that plaintiff was in the
service of the independent contractor, the jury's
determination in favor of plaintiff on sufficient
evidence bound the Court of Civil Appeals.
13. TRIAL 194(9)
INSTRUCTIONS ON
WEIGHT OF EVIDENCE INJURIES TO EM-
PLOYÉ.

Under Vernon's Sayles' Ann. Civ. St. 1914, art. 1971, providing that the court shall not charge or comment on the weight of the evidence, an instruction, in an action for injuries, that the making of an application for employment, and an agreement proved as to plaintiff's seniority on defendant railroad company's list of conductors, did not constitute an employment by the railroad company, was properly refused, where it was not in explanation of any legal terms used in the special issues. 14. TRIAL 251(8) INSTRUCTIONS

1

-

APPLICABILITY TO ISSUES. Where the special issues did not ask whether plaintiff was an employé or defendant an employer, though one of the issues asked whether plaintiff was in defendant's employ, a requested instruction defining the words "employer" and employé" was not pertinent and was properly refused.

An assignment of error complaining of the sustaining of an objection to a question will be overruled where the bill of exception does not show what answer the witness would have made. 19. EVIDENCE 471 (30)-FACTS OR CONCLUSIONS-AGENCY.

Testimony that a witness was collecting money and tickets for a named railroad company stated facts, and not the conclusions of the witness. 20. APPEAL AND ERROR 500(3)-RECORDRULINGS-NECESSITY OF SHOWING.

The failure to exclude testimony on motion will not be considered where the bill of exception does not affirmatively show that the court ruled on the motion. 21. EVIDENCE 116-ADMISSIBILITY-MATTERS EXPLANATORY OF FACTS IN EVIDENCE.

Where, in a railway conductor's action for injuries, defendant alleged and attempted to prove that the relation of master and servant did not exist between it and plaintiff, and in this connection introduced evidence that plaintiff took orders from, made reports to, and was paid by certain persons claimed by it to be agents of an independent construction contrac tor; testimony that these agents represented both the contractor and the railroad company was relevant.

22. EVIDENCE 155(1) - ADMISSIBILITY BY REASON OF ADMISSION OF OTHER EVIDENCE.

Where defendant introduced in evidence the business relationship between it and the contractor, it was proper for plaintiff to develop the details of such relationship, especially on cross-examination. 23. APPEAL AND ERROR 499(1)-RECORDPRESENTATION OF OBJECTIONS.

An assignment of error complaining of the argument will be overruled where the bill of exception states no reason for the objection to the argument, especially where it appears therefrom that the argument was entirely within the reeAP-ord and proper. 24. TRIAL

Under Vernon's Sayles' Ann. Civ. St. 1914, art. 1984a, providing that in submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues, an instruction in a railway conductor's action for injuries that a person named was an independent contractor, and that defendant was not liable for his negligent acts, was properly refused, where it was not an explanation or definition of any term used in any special issue given.

16. TRIAL 350(8)—SPECIAL ISSUES—UNDISPUTED FACTS.

Under Vernon's Sayles' Ann. Civ. St. art. 1985, providing that the special verdict must find the facts established by the evidence, and that it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleadings, undisputed facts should not be submitted in special issues.

17. TRIAL 350(6) — SPECIAL ISSUES - EVIDENTIARY OR ULTIMATE FACTS.

352(5)—SPECIAL ISSUES-ISSUES

ASSUMING FACTS.

In a railway conductor's action for injuries, in which defendant claimed that plaintiff was working for an independent construction contractor, a special issue as to whether it was neg ligence "on the part of defendant railroad company to have and permit said brake wheel and its attachments to be in such insecure and defective condition," though, standing alone, subject to the objection that it assumed that the car was defendant's property and that plaintiff was in defendant's employ, was not misleading, where in preceding issues the jury were asked whether plaintiff was in defendant's employ when injured, whether such car was being moved in the operation of the railroad by defendant when he was injured, whether it was defendant's property, and whether the brake wheel and attachments were insecurely fastened and in a defective condition.

On Motion for Rehearing.
25. DAMAGES 132(10)
PERSONAL INJURIES.

EXCESSIVENESS

Under Vernon's Sayles' Ann. Civ. St. 1914, A railway conductor 45 years old, and havart. 1985, providing that the special verdict ing an earning capacity of about $125 a month, must find the facts established by the evidence, was thrown under a car and badly crushed, neand not the evidence by which they are estab- cessitating the amputation of one leg and three lished, where there was a dispute as to wheth-operations on the other, in which so much of

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

The cause alleged in appellee's first amend-plaintiff is alleged to have been injured he was ed original petition was that appellee, while in the employ of the appellant railroad company in the capacity of railroad conductor, and while in the performance of his duties as such conductor, was seriously and permanently injured by the negligence of appellant. The negligence alleged is:

[2] The second exception is that specified allegations in the supplemental petition were mere conclusions and not statements of facts. The criticism is probably correct; but the conclusions were concerning questions that did not affect the verdict or the judgment and, in accordance with rule 62a (149 S. W. x), if error, would not be reversible error. The conclusions complained of were concerning the liability of the railroad company in the event appellee was, at the time of his injury, in the service of J. E. Franklin, an independent contractor. The jury found, upon sufficient evidence, that appellee was in the service of the railroad company and the judgment based upon that finding. Both assignments are overruled. [3] The third assignment contends that the first special issue should not have been given.

any testimony tending to show that the plaintiff, that J. E. Franklin was an independent conwas in the employ of J. E. Franklin, an inde- tractor. pendent contractor, that said testimony would not be true, and at best said untrue testimony would only tend to show that the said plaintiff was in the joint employ of both the said defendant railroad company and said J. E. Franklin, and, should it be found that the plaintiff was in the joint employ of said defendant railroad company and said J. E. Franklin, such a finding would be no defense to the plaintiff's cause of action, and in event such a finding is made the plaintiff says that, even under such facts, the defendant railroad company would still be liable to this plaintiff; that the defective car mentioned in plaintiff's petition, as well as the other cars and the locomotive in the train being handled, were owned or operated by the defendant company, and it was said defendant company's duty to use ordinary care to maintain said car in a reasonably safe condition to be handled by those whose duty it was to handle it; that, regardless of plaintiff's employment, it was negligence on the part of the said defendant company to permit said car to be in such defective condition, and as aforesaid plaintiff was handling said car in the discharge of his duty, and therefore the said defendant company is liable to the plain-The issue is: tiff for the damages which its negligence directly produced."

Appellant addressed, in a supplemental answer, a general demurrer and two special exceptions to the first supplemental petition, all of which were overruled. Error in overruling the two special exceptions is assigned for our review.

The facts are that on November 29, 1913, appellee was a train conductor, and while in the performance of his duties found it necessary to use a brake wheel on car No. 173 as a handhold; that the brake wheel and its attachments on said car were insecurely fastened, and were in a defective condition as alleged, which constituted negligence, which negligence directly caused the injuries suffered by appellant; that the injuries were serious and permanent, causing appellee great pain and impairing his earning capacity.

In addition to the foregoing facts, the jury found that appellee at the time of his injury was "engaged in doing service for the" appellant railroad company, was in the employ of same, and was injured while engaged in said employment. The jury further found that at the time of the injury the car No. 173 was being moved by the appellant railroad company either in the operation of its railroad or in work incidental to such operation, and that the car No. 173 belonged to the appellant company. There was evidence to sustain these facts found by the jury, and, in deference to the verdict, we find them as facts established by the evidence in this cause.

[1] Assignments numbered 1 and 2 complain of the decree overruling two special exceptions to the first supplemental petition. The first exception is that the allegation that J. E. Franklin was the president of the appellant railroad company was injurious and irrelevant. We think the allegation was relevant, in view of appellant's contention

was

"At the time the plaintiff, G. R. Dawson, claims to have been injured, on November 22, 1913, was he engaged in doing any service for the defendant, San Antonio, Uvalde & Gulf Railroad Company?"

The objection to the instruction is that it submits an immaterial issue.

The issue made by the pleadings is, Who was the master of appellee when injured? To determine this issue, appellant introduced testimony tending to prove that appellee worked intermittently for appellant and for Franklin, an independent construction contractor. Appellant's testimony tended to furnish a certain test from which the jury could determine who was the master at the moment of the injury. That test was, Whose service was appellee engaged in at the time? Appellant's testimony tended to prove that the service was that of construction, and for Franklin; while appellee's testimony tended to prove the service was transportation of passengers and freight, and therefore for the railroad company. The issue submitted, therefore, was material to the contention insisted upon by appellant as material. The third assignment is overruled.

[4] The fourth assignment complains that it was error to ask the jury if appellee was in the employ of appellant when the injury occurred. The seventeenth assignment complains that it was error to refuse to submit the question in another form, viz., Was appellee in the employ of the contractor when the injury occurred? The issue of who was the master was made by the pleadings and became sharply contested by the evidence, and was properly submitted. The language used is not subject to criticism. The same issue could have been submitted in either the form given or in the form refused, but, being given in one form, it was not error to refuse to give it in the refused form.

[5] The real contention presented by assignments 4 and 17 is that each group of