the said defendant was guilty of negligence, | ployer knew or by the exercise of ordinary if it were so guilty, and that the injuries, if any, of the plaintiff were the proximate result of the negligence of said defendant, then in such events you will find for the plaintiff, and in such events would allow him damages in such sum as in your judgment would reasonably and fairly compensate him in money for the physical and mental pain, if any, consequent upon his injuries received, and if from the evidence you believe from the testimony that plaintiff's injuries, if any, are permanent, and will diminish his ability to labor and earn money in the future, then, in addition to the above, allow him such a sum as will reasonably and fairly compensate him for the diminution, if any, in his capacity to labor and earn money, consequent upon such permanent injuries, if any, from September 1, 1911, the time when his disabilities of minority were removed, until the end of his life."

care should have known of these facts, then, in such events, in order to prevent a recovery, you must believe that he failed to exercise that degree of care that persons of his age, undeveloped judgment, and want of information (if his judgment were undeveloped and if he did labor under a want of information) would ordinarily use under such circumstances, and that his injuries, if any, were the proximate result of negligence of the defendant, if any. It is not merely the fact of plaintiff's minority at the time he was hurt that you relieve from the care demanded of an adult, but such immaturity of judgment, inexperience, and lack of information as has been defined to you would be necessary to relieve him from that degree of care." And in succeeding portions of the charge they were told to find for appellant if they believed appellee was himself guilty of negligence which "proximately caused or It is insisted that the portion of the contributed to his injury," or if they believed charge copied is erroneous, "in that it auhe "assumed the risk incident to his employthorized the jury to find defendant was neg-ment," or if they believed he had been warnligent in requiring plaintiff to do the worked of the "danger of oiling said machinery in of oiling the machinery, a duty which he was employed to perform and which he agreed to perform."

We do not so understand the instruction. As we understand it, the jury were not authorized to find for appellee, unless they believed that in doing the work as he attempted to do it he did not assume the risk he thereby incurred and was not himself negligent, and further believed that appellant was guilty of negligence in directing him to do same without first instructing him as "to the manner in which he should place himself when oiling said bearing." In a paragraph of the charge immediately following the one in question the jury were told: "You are further instructed that if you believe from the evidence that the plaintiff knew, or had the same means of knowing as his employer, of the danger to which he would be exposed in performing services at said place, and further believe from the evidence that the plaintiff failed to exercise that degree of care that a man of ordinary prudence would have used under the circumstances to avoid injuries from such danger, if any, and that by reason of the omission to observe that measure of caution he was injured, he cannot recover unless you believe from the evidence that at the time plaintiff was hurt he was a young man of immature judgment and experience in such business in which he was employed, and that the perils of his undertaking were not communicated or known to him, and that, by reason of such immaturity of judgment, inexperience, and want of information as to the perils of his employment he was incapable of understanding the nature and extent of the hazards to

the way and manner that he attempted to oil same." At the request of appellant, the jury were further specially instructed to find for it if they believed appellee "was a minor, but knew of the danger of oiling the machinery in the way and manner he oiled it," or if they believed he "was injured in some way or manner not alleged in his petiinstructions referred to are construed togethtion and not testified to by him." When the er, we do not think the jury could have understood the court to have meant that they been negligent merely because they believed were authorized to find appellant to have appellee had been required to do work he had engaged to do.

in question, that it was "on the weight of The objection to the portion of the charge the evidence, in that the effect thereof is to tell the jury that the defendant was guilty of negligence in not directing the plaintiff to oil the bearing in some other way than the way he did oil it," we think is also without merit. The theory, and only theory as we understand the charge, upon which the jury were authorized to find that appellant had been guilty of negligence, was that it directed him to oil the machinery, without discharging a duty it owed him to instruct him as "to the manner in which he should place himself" while performing the service. Plainly, so instructing the jury was not equivalent to telling them appellant was guilty of negligence in not directing appellee to oil the bearing in some way other than the way he attempted to oil it.

[5] It is next insisted that the court erred in the portion of the charge in question in his statement as to the measure of the damages recoverable by appellee-the specific

struction "was to authorize the jury to calculate the amount the plaintiff would lose annually for the period of his natural life, and allow him this sum of money," whereas "the rule is that plaintiff should have been allowed such sum of money as, if paid now, would reasonably and fairly compensate him for injuries received." We think the jury as reasonable men must have contemplated that the damages recoverable by appellee

when lawfully ascertained would be paid, and could not have been so misled as to base their finding as to the amount thereof on any other theory. Railway Co. v. Lester, 84 S. W. 404.

HAMILTON v. D. S. CAGE & CO. (Court of Civil Appeals of Texas. El Paso. Dec. 5, 1912.)

APPEAL AND ERROR (§ 80*)-FINAL JUDG

MENT.

in one defendant by a cross-action sought to Where the judgment, in an action whererecover on a claim against his codefendants, failed to dispose of such defendants' cross-action, it was not a final judgment, from which he could appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*]

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by D. S. Cage & Co. against L. G. Hamilton and others. From judgment for plaintiff, Hamilton appeals. Appeal dis

[6] The verdict and judgment are attacked as excessive. There is nothing in the record indicating that the jury in determining the amount thereof may have been improperly missed. influenced. The amount found represents, it seems, the unbiased judgment of the jury.

Terry, Cavin & Mills, of Galveston, for

If, therefore, we regarded the sum found by appellant. L. B. Moody, of Houston, for ap

them as excessive, we would not feel war-
ranted in setting aside their finding and
substituting one of our own for it.
The judgment is affirmed.

On Motion to Correct a Finding Made, Make
Other Findings, and for a Rehearing.
In the opinion is this statement: "The
spout of the can came in contact with and
was caught by the cogs on the line shaft, as
a result appellee's feet were caused to slip
forward on the box he was standing on, and
as he fell or leaned east over the other
box, as a consequence of his feet slipping,
his hand was caught and crushed by the
cogs." So far as the statement is to the ef-
fect that appellee was caused to slip on the
conveyer because the spout of the oil can
was caught by the cogs it is erroneous. The
testimony showed, instead, that the spout was
caught by the cogs because appellee slipped
on the conveyer.

pellees.

HIGGINS, J. Appellees filed suit against R. E. Grotkass, H. W. Schwartz, and L. G. Hamilton, alleging that Grotkass and Schwartz were indebted to them in the sum

of $10,384.80 for goods, wares, and merchandise sold and delivered, the payment of which was secured by chattel mortgage on certain personal property not necessary here to particularly mention, and also on the entire crop of rice raised on section 121, T. & N. O. Ry. Co. survey, in Chambers county; that 350 sacks of rice raised on said premises, on October 26, 1910, were delivered to the defendant Hamilton, who was a common carrier operating a line of boats to Houston, Tex.; that said rice was delivered to Hamilton as such common carrier, to be delivered to the plaintiffs at Houston, Tex., and Hamilton accepted and promised to so deliver the same; but, instead of so doing, he retained the same in his possession and re

of findings requested we make the follow-fused to deliver the same to plaintiffs. Judg ing: (1) That on his application therefor the district court of Taylor county on April 6, 1911, rendered a judgment removing appellee's disabilities as a minor. (2) That appellee in the fall of, 1908 and spring of 1909 worked at a packer in a gin, and in the spring of 1910 worked in the linter room of a gin, where there was machinery. (3) That appellee knew if his feet should slip into the conveyer he was standing on at the time he had his hand crushed, they would be injured by an iron shaft which revolved therein.

The correction as specified of a finding made when the record was first before us, and the additional findings now made do not, we think, furnish a reason for setting aside the judgment rendered here. Therefore, the motion for a rehearing is overruled.

ment was prayed against Grotkass and Schwartz for said sum of $10,384.80, and for foreclosure of lien on all of the property covered by said mortgage, including said 350 sacks of rice. Judgment against Hamilton was sought for the possession of said 350 sacks of rice and for the sum of $200, the same being the difference between the market price thereof when delivered to Hamilton and the market price at that date; and, in the alternative, judgment was prayed against Hamilton for the sum of $1,000, the same being the market price of the rice.

Defendant Hamilton answered, denying that he was a common carrier for hire, or that said rice had been delivered to him by Grotkass and Schwartz for transportation and delivery to plaintiffs. He averred that on December 1, 1909, he was part owner of

Supplemental pleadings filed by the parties relate to matters not material to a consideration of this appeal. Upon trial before the court, without a jury, judgment was rendered in favor of plaintiff against Grotkass and Schwartz for the sum of $5,529.04, with interest from date of judgment at the rate of 6 per cent. per annum, foreclosing their chattel mortgage lien as against all of the defendants upon the 350 sacks of rice in possession of the defendant Hamilton, and an order of sale therefor directed to be issued, and, if the said 350 sacks of rice could not be found, then that the plaintiffs have judgment against the said Hamilton for the sum of $997.50, with interest from October 26, 1910, at the rate of 6 per cent. per annum, amounting in the aggregate to the sum of $1,037.40.

the premises described in the plaintiffs' peti- [ants, Grotkass and Schwartz, for any and all tion, and as such part owner and as agent sums or amounts of money which may be for the other owners he contracted and adjudged to be due by this defendant to the agreed with Grotkass and Schwartz, where plaintiff herein. This defendant prays for by the said Grotkass and Schwartz were to all such other and further orders and decultivate a rice crop upon said premises, crees, general and special, in law and in which agreement was in writing, and a copy equity, as the facts may warrant." thereof was attached to the answer and made a part thereof. It was further alleged: "This defendant further alleges that, during the term of the aforesaid lease, he advanced to and paid out for and on behalf of his codefendants various sums of money in the total amount of $834.42, for uses and purposes necessary for the said codefendants for the proper farming and harvesting of their said rice crop, and that the said sums of money paid out and advanced as aforesaid are more specifically shown in a certain itemized statement, attached hereto, marked 'Exhibit B,' and specifically made a part hereof; that on or about October 26, 1910, the said defendants Grotkass and Schwartz delivered to this defendant 350 sacks of rice, with the distinct understanding and agreement that this said defendant was to hold the said 350 sacks of rice as security for the said advances above mentioned, which were thereafter made by this said defendant; that the market value of the said 350 sacks of rice was $803.10, and that that sum was insufficient to reimburse this defendant for the amounts advanced to his codefendants as above set out; that by reason of the above facts and circumstances there remains due to this defendant from his said codefendants, Grotkass and Schwartz, the sum of $31.32, all as more particularly made to appear in the itemized statement attached hereto and marked 'Exhibit B.' Further pleading here in, this defendant respectfully shows to the court that the said above advances made by him to his codefendants were made in the due course of relationship between them as landlord and tenant; that the said defendant herein, by reason of the aforesaid facts, hath a landlord's lien upon the said 2,250 sacks of rice now in the possession of the plaintiff herein to secure to this defendant the sum of $31.32 due him by reason of the aforesaid advances. Wherefore defendant, having fully answered herein, prays that upon a hearing hereof the plaintiff take nothing in this suit as against this defendant, and that this defendant have judgment against his said two codefendants, Grotkass and Schwartz, in the sum of $31.32, together with a foreclosure of this defendant's said landlord's lien upon the said 2,250 sacks of rice now in the plaintiff's possession. But if it be held by the court that the lien of plaintiff herein was superior to the right of this defendant to appropriate the said above-mentioned 350 sacks of rice, this defendant prays that he have judgment against said codefend

It will be noted, from the statement made of the pleading of the appellant, that an indebtedness is asserted by him against his codefendants, Grotkass and Schwartz, and judgment therefor is prayed, together with lien foreclosure. It will likewise be noted that the judgment in no wise disposes of this cross-action, and, since it fails to dispose of this issue, it is not a final judgment, from which an appeal could be prosecuted. It is therefore ordered that this appeal be, and the same is hereby, dismissed. Bell, 53 Tex. Civ. App. 474, 116 S. W. 837, on rehearing; Bushong v. Alderson, 143 S. W. 200; Daugherty v. Daugherty, 145 S. W.

642.

Williams v.

HOLLOWAY et al. v. HALL et al. (Court of Civil Appeals of Texas.

1.

Galveston.

Oct. 26, 1912. Rehearing Denied
Dec. 5, 1912.)

APPEAL AND ERROR (§ 554*)-FINDINGS OF
FACT-CONCLUSIVENESS.

The findings of fact are in the absence of a statement of facts conclusive.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2472-2477; Dec. Dig. § 554.*]

2. PARTITION (8 85*)- IMPROVEMENTS

FECT.

-

- EF

A tenant in common who has improved the land, not to embarrass his cotenant, is entitled to have the improvements set apart to him if it if it cannot be done, he is entitled to compensacan be done without injury to the cotenant, and, tion from the cotenant in the partition.

PRESUMP

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 236-245; Dec. Dig. & 85.*] 3. APPEAL AND ERROR (§ 934*) TIONS JUDGMENT-RECORD. In the absence from the record of the pleadings, the court on appeal will presume in sup

port of the judgment that the pleadings on file authorized the judgment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3777-3781, 3782; Dec. Dig. § 934.*]

4. APPEAL AND ERROR (§ 1028*)-HARMLESS

ERROR-INFORMALITY OF PROCEDURE.

Where the unchallenged findings attain justice, the judgment thereon will not be reversed merely because of informality of procedure, not affecting the merits or the substantial rights of the parties.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4034; Dec. Dig. § 1028.*]

Appeal from District Court, Tyler County; W. B. Powell, Judge.

Action by Mrs. C. L Holloway and another against H. L. Hall and others for partition. From a judgment overruling objections to the report of commissioners partitioning the land and approving the partition made by them, plaintiffs appeal. Affirmed.

Crow & Phillips, of Groveton, for appellants. Joe W. Thomas, of Woodville, for appellees.

by them. After the commissioners had made their report, and before it had been acted upon by the court, the plaintiffs Holloway filed their objections thereto, the objection in the main being, substantially, that, as the commissioners found that the improvements on the land were worth $200, this added that much to the value of the land as a whole, and that the commissioners should have considered the value of both the land and improvements in making a fair and equitable partition and not the value of the land alone. Their contention, in other words, is that they were entitled to a greater number of acres than were apportioned to them to offset the tract, made more valuable by the improvements, which was set apart to the Kirklands. In answer to this contention, the Kirklands filed a plea in which they set up that, being tenants in common with the Holloways, they entered upon the land and placed improvements thereon, and that such improvements were made in good faith, and not with the intent to embarrass their cotenants, and that the same in no way affected the rights McMEANS, J. This is the second appeal of the Holloways, and that the latter had of this case. See Holloway v. Hall, 136 S. in no wise been prejudiced by reason of the W. 488. On the former appeal it was decid- making of said improvements, and that such ed on the undisputed facts that the appel- improvements do not extend over, affect, or lants Holloway were entitled to five-eighths interfere with the Holloways in the use and of the land in controversy and the appellees enjoyment of the land set apart to them by Kirkland to three-eighths thereof, and the the commissioners of partition; and they judgment of the trial court was reversed, and prayed that the report allotting to them the the cause remanded, with instructions to the 151⁄2 acres, including the value of their imdistrict court to render judgment according-provements, be confirmed. The pleadings of ly, and to cause the land to be partitioned the parties, other than those filed subsebetween the parties according to law. Upon the filing in the court below of the mandate of this court, the district court entered its decree in accordance with such instructions, and appointed commissioners of partition, ordering them "to make a fair, just, impartial, and equitable division of said tract of land in accordance with the provisions of said decree and the law-that is to say, that you are to apportion said land as above instructed, five-eighths to the plaintiffs and three-eighths to the defendants-and this you No statement of facts accompanies the recshall do equitably." The commissioners of ord, but upon proper request the trial judge partition, after being duly commissioned, en- filed his findings of fact and conclusions of tered upon the land, surveyed it to ascer-law, from which we copy so much as we tain the exact number of acres in the tract, | think essential to an understanding of the made partition thereof, and then made their grounds upon which this decision is based: report to the court. They reported that the tract contained 41% acres, that the land without the improvements was of the uniform value of $7 per acre, and they appor- | tioned to the Holloways 26 acres, and to the Kirklands 152 acres thereof. They further reported that the defendants Kirkland occupied and had made permanent and valuable improvements on a part of the land, which they held as tenants in common with the Holloways, of the value of $200, and that in making partition they had set aside and apportioned to the Kirklands the land upon which such improvements had been erected

quently to the filing of the report of the commissioners of partition, are not incorporated in the record. The court, after hearing the exceptions and objections of the plaintiffs, and the evidence adduced thereon, overruled the same, and entered judgment approving the report of the commissioners of partition, and vesting in the parties title to the land apportioned to them respectively. From this judgment the plaintiffs Holloway have appealed.

"(4) I find that on July 25, 1911, this cause being reached for trial, this court entered its judgment in obedience to said order and decree of the Court of Civil Appeals, adjudging and decreeing to Mrs. C. L. Holloway and R. R. Holloway a five-eighths of the land in controversy and to the defendants Ed Kirkland and Alta Kirkland three-eighths of said land, etc.

“(5) I find that also at the same time, to wit, July 25, 1911, this court also by its order and decree, in obedience to said order of the Court of Civil Appeals, ordered that the land in controversy be partitioned between

the parties in the proportionate shares, to | spective parties be vested in them respecwit, to said plaintiffs five-eighths, and to tively. said defendants three-eighths of the land in controversy, and this to be done equitably, and at the same time appointed E. H. Hopson, Wm. McCready, and T. M. Hyde as commissioners to go upon the land and partition same in accordance with this court's decree. "(6) I find that said commissioners did enter upon said land, and, after viewing same, partitioned the land, setting apart to the plaintiffs Mrs. C. L. Holloway and R. R. Holloway 26 acres of land off the east, and to the defendants Ed Kirkland and wife, Alta Kirkland, 15% acres of the land off the west portion of said land in controversy.